Last Modified: 9/23/2015
1. Preliminary Provisions.
Welcome to Our Website’s Agreement (hereinafter “Terms and Conditions” or “Agreement”). The provisions of this Agreement will govern Your use of Our Website(s) and all affiliated Websites and other services, and You should therefore take some time to read it carefully. We hope that You thoroughly enjoy Our Services, and anticipate that You will find Our Site useful and informative. Should You have any questions or comments regarding Our website, or its policies, please feel free to contact Us at: support@TalkToMe.com.
1.2. We are placing legal conditions on Your use of this Website.
1.3. Our first condition is that You must agree to all of the conditions in this Agreement. You do not need to use Our Website, therefore if You do not wish to be bound by each and every provision in this Agreement, then You are not welcome to use this Website and should leave and use another service.
1.4. If You do not understand all of the terms in this Agreement, then You should consult with a lawyer before using the Website.
1.5. This Website is for adults only. If you are under the age of eighteen (18) You are not to use this Website at all. Misrepresentation of your age to gain access to Our Website is considered a breach of this agreement and computer hacking under federal law. If you are under eighteen (18) years of age, STAY OUT!
1.6. Party Definitions and Introductory Terms.
1.6.1. “We” or “Us,” means the service provider of the above referenced website(s) (hereinafter collectively referred to as “Website” or “Site”) and related services, which include uploading and downloading data and content to the Site and telephonic and electronic communication with others through our Site (“Services”). When this Agreement uses first-person pronouns such as “Us,” “We,” “Our,” “Ours,” etc., those first-person pronouns are referring to the Website.
1.6.2. “You,” the User. As a User of this Website, this Agreement will hereinafter refer to the User as “You” or through any second-person pronouns, such as “Yours,” etc. Hereinafter, the User of the Website shall be referred to in applicable second-person pronouns.
1.6.3. Visitors, Customers, Users, Callers and Talkers. This Agreement applies to all Visitors, Users, Callers, and Talkers. You become a User by accessing this Site in any way, and a “User” refers to Visitors, Customers, Callers, and Talkers collectively. A “Visitor” is someone who merely views Our Site without purchasing content or services. A “Customer” is someone who enrolls to be a “Caller” or a “Talker.”
Consideration for Your knowing agreement to all of the provisions in this Agreement has been provided to You by allowing You to use Our Website and Our Services. You agree that such Consideration is adequate, and that it is received upon Your viewing, accessing or downloading any portion of Our Website or by participation as a Caller or a Talker.
1.8. Revisions to this Agreement.
1.8.1. From time to time, We may revise this Agreement. We reserve the right to do so, and You specifically agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force immediately upon posting. The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect. To the extent any amendment of this Agreement is deemed ineffective or invalid by any court, the parties intend that the prior, effective version of this Agreement be considered valid and enforceable to the fullest extent.
1.8.2. If We change anything in this Agreement, We will change the “Last Modified Date” at the top of this Agreement. The Agreement is located at (https://www.talktome.com/news/terms-and-conditions/), and a link to the Agreement is also at the bottom of the home page of the Site. You agree to periodically re-visit this web page, and to use the “Refresh” button on Your browser when doing so. Upon each visit, You agree to note the date of the last revision to this Agreement. If the “Last Modified Date” remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the “Last Modified Date” has changed, then You can be certain that something in the Agreement has been changed, and You agree that You will again review the Agreement in its entirety and that You will agree to its terms or immediately cease use of the Website. Your continued Use of the Website, after any such revision, shall be deemed to be Your acceptance of all revisions.
1.8.3. Waiver. If You fail to re-review this Agreement as required to determine if any of the terms have changed, You assume all responsibility for such omissions and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended Agreement. We are not responsible for Your neglect of Your legal rights.
1.8.4. Although this User Agreement represents the primary terms and conditions of service for the Site, additional guidelines and rules are hereby incorporated by reference. The documents which can be found on Our Site and which are specifically incorporated by reference, and are therefore part and parcel of this Agreement are the following:
2. Acceptance and Affirmation.
2.1. You must agree to all of the terms in this Agreement before using the Website or Our Services. If You fail to agree to the all the terms in this Agreement, You understand that You are an unauthorized user of Our Website and Services, despite any payments made or Services sold to You. No act or omission by Us shall be interpreted as a waiver of the requirement that You assent to this Agreement, in its entirety. If You fail to do so, You are still bound by the terms of this Agreement by virtue of Your viewing the Site or using any portion of the Site or Our Services. However, if You fail to agree to the terms in this Agreement, You stipulate to and agree to pay Us Two Hundred and Fifty ($ 250.00) dollars each time You access the Site as liquidated damages for unauthorized access and use, and You agree to pay all of Our costs and expenses, including Attorneys’ fees and costs, incurred in collecting this unauthorized access fee from You.
2.2. How You can and will demonstrate Your affirmative acceptance of all of the terms in this Agreement:
2.2.1. BY CLICKING THE BUTTON TO CONTINUE ON THE REGISTRATION PAGE, BY USING THE SITE AND ANY OF OUR SERVICES, INCLUDING ANY CONTENT PROVIDED THEREIN, BY INITIATING ANY FORM OF COMMUNICATION WITH A USER OR BY POSTING ANY DATA ON THE SITE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT IN THE SAME WAY YOU WOULD BE BOUND HAD YOU SIGNED A PAPER CONTRACT; or
2.2.2. Via electronic means. As this Agreement may be accepted electronically, Your acknowledgement of assent by e-mail, facsimile, or other electronic means, shall constitute valid acceptance of the provisions contained herein and shall obligate the transmitting party in addition to any registered account associated with such party; or
2.2.3. If You click any link, button, or other device, provided to You in any part of Our Website’s interface, then you have legally agreed to all of these Terms and Conditions; or
2.2.4. By using any of Our Services in any manner, including uploading Your Content to Our Site, You understand and agree that We will consider such use as Your affirmation of Your complete and unconditional acceptance to all of the terms in this Agreement.
IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR ANY OF OUR SERVICES.
2.3. If You are seeking information regarding any illegal activities, please leave this Site immediately and do not attempt to use the Services. You acknowledge that You are aware of the community standards in your community, and You will only access the content on the Site and/or use the Services if You believe that the content on the Site does not offend the community standards prevalent in Your community.
2.4. You agree not to use the Services or access the Site if doing so would violate the laws of Your state, province, or country.
3. Access and User Status
3.1. Access and limited license.
All Users may access certain public areas of the Site. You understand that all We are selling or providing You is access to Our Site or Services as We provide them from time to time. You need to provide Your own access to the Internet, and any fees that You incur to access Our Site are Your sole responsibility. We are not providing any hardware nor software to You – and You must purchase or license the necessary hardware and software to access the Site. This User Agreement covers all public and non-public areas of the Site.
3.2. You are responsible for providing all equipment and the computer necessary to access the Site. We reserve the right to modify the Services and the Site’s design at anytime, with or without prior notice. You may become a User of the Site by completing an online registration form, which must be accepted by Us. Upon submission of the online registration form, Site or its authorized agent will process the application. In connection with completing the online registration form, You agree to provide true, accurate, current and complete information about Yourself as prompted by the registration form (such information being the “Registration Data”); and You further agree to maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times while You are a User. All Users who register online for Our Site and Services will receive a password and a account (“Account”).
3.2.1. You must promptly inform Us of all changes, including, but not limited to, changes in Your address and changes in Your credit card used in connection with billing and/or payment for the Site and Services, if applicable. If You provide any information that is untrue, inaccurate, not current or incomplete, or if We or any of Our authorized agents, in our sole discretion suspect that such information is untrue, inaccurate, not current or incomplete, We have the right to suspend or terminate Your Account and refuse any and all current or future use of the Site and Services, as well as subjecting You to criminal and civil liability. You are responsible for any credit card charge backs, dishonored checks and any related fees that Site incurs with respect to Your Account. If You fail to reimburse Us for any credit card chargebacks, dishonored checks, or related fees within thirty (30) days of Our initial demand for reimbursement, You agree that You will pay Us One Hundred ( $ 100) dollars in additional liquidated damages for each fee incurred.
3.2.2. User Names. Upon Your registration as a customer of Our Site, You may be asked to choose a user name to identify yourself to other Users and Our staff. You may not select or use a user name of another person (unless it is also your name), or a name which violates any third party’s trademark right, copyright, or other proprietary right, which is or may be illegal, which may cause confusion, or which We deem in Our discretion to be inappropriate, vulgar or otherwise offensive. We reserve the right to delete any user name, or to require deletion thereof.
3.2.3. Account Responsibility. User agrees that We shall be irreparably harmed by unauthorized access to Our computer systems, databases and Site, and to notify Us immediately of any unauthorized use of User’s password or accounts, as well as any other breach of security. User acknowledges and agrees that (1) We have invested substantial time and resources in establishing the computer systems and databases that allow for the operation of Our Site and (2) it is necessary for Us to protect Our Site and its related computer and database systems, as well as its intellectual property, from unauthorized access.
3.2.4. Subject to Your supervision and assumption of all resulting liabilities, you may specify any third party User Names who will have the right to access and administer Your Account on Your behalf. With the sole exception of the designated User Names associated with Your Account, You shall not share Your password, or allow third parties to use or access Your Account, as any such access is unauthorized for the purposes of this Agreement. User acknowledges and agrees that any unauthorized access to Our Site is strictly prohibited and We shall prosecute any violators to the fullest extent permitted by law. You are responsible for: (a) any and all activities conducted through Your Account, this includes any activities occurring with or without Your knowledge by User Names associated with Your Account; (b) maintaining the confidentiality of your password(s) and Account(s) and ensuring that any User Names associated with Your Account do the same; (c) disclosing to Us a complete and current listing of those User Names who are authorized to access your Account on Your behalf; (d) notifying Us immediately of any unauthorized use of Your password or Account(s) as well as of any other breach of security; (e) ensuring that all activities that occur in conjunction with the operation of Your Account comply with the terms of this Agreement.
3.2.5. By uploading any content (“Your Content”), You agree to give Us irrevocable nonexclusive royalty-free rights to use Your Content for any purpose, including publication, display, advertising, marketing, modification, and creation of derivative works while a member of our site. You further agree that, notwithstanding Your removal of Your Content from Our Site, You grant Our Users the irrevocable and nonexclusive royalty-free right to continue to view and use Your Content. We have the right to use any of your content in promotional material in print or online once you have uploaded it to the site. Your profile content will be removed from the site, if you request account termination, within 5 business days of your request. Any of your content that may have been used in print promotional material while you were a member of the site, you agree to give us royalty-free rights to continue using in the current print campaign. Any recorded calls that you have opted into while a member of the site will remain our content and we are free to continue selling in the future. Any content that was purchased by users while you were a member of the site will remain available to the purchaser.
18.104.22.168. At our option we can record all communication conducted and or initiated through this site including all chat, email, voice, data, streaming content and other forms of communication. You have the option to opt-out of recording of your phone calls on the My Account page in the member’s area. We can use data obtained, at our sole discretion, to evaluate the service, to monitor compliance with these terms of service, to excerpt data of interest to us for promotion and/or sale and to promote our business. You agree that you have no expectation of privacy or ownership in any communication or data exchanged through this Site and or between users of this Site. Instead, you agree that all such data shall be our property to do with as we deem appropriate.
3.2.6. You agree that Your Content will comply with all provisions set forth in this Agreement, including the Acceptable Use Policy in Section 6.3.1 of this Agreement. You are responsible for all content You upload or otherwise provide via Your store.
3.2.7 Unless We specifically agree otherwise in writing, you will not allow, and will use commercially reasonable efforts to make sure a third party does not: (a) access or copy Your Content or Your Account through any automated technology or other unauthorized means, including without limitation, “robots,” “spiders,” or other devices that send more requests to Our servers than can be reasonably undertaken by a human using a commercially available web browser within a reasonably acceptable time to cure; (b) disable, circumvent, or otherwise interfere with security features established by Us that prevent unauthorized access to Your Content or Your Account; (c) attempt to reverse engineer Our Services, Our Site or any of their parts or components; (d) or attempt to create a substitute or similar service or website through the use of, or access to, Your Content or Your Account.
3.2.8. You agree that neither Us nor any third-party acting on Our behalf shall be liable to You for any termination of Your Usership or access to the Site or Services. You agree that if Your Account is terminated by Us, You will not attempt to re-register as a User – using the same or different username – without prior written consent from Us. Active Users may not knowingly allow former Users who have been terminated to use the active Users’ Account(s).
3.2.9. Terminating Your Account. Either You or We may terminate Your Account with Us at any time with or without cause. Your only right with respect to any dissatisfaction with any (i) term within this Agreement or policy or practice We use in operating the Site or Service, (ii) content available through the Site, or (iii) amount or type of fees or billing methods, or change therein, is to terminate Your User Account with Us by notifying Our User Support of Your desire to terminate by support@TalkToMe.com. Your notice of termination will be effective upon receipt by Us, or upon receipt of confirmation if confirmation is requested. Any fees due to You at the time of termination will be held for a period of ninety (90) days. In the event Your Account is terminated for violating any provision of this Agreement, or for violating Our rules, polices or restrictions, any funds owed to You will be forfeited to Us.
You are responsible for providing all equipment and the computer necessary to access the Site. We reserve the right to modify the Services and the Site’s design at anytime, with or without prior notice. In connection with completing the purchase of any content provided by our Users, You agree to provide true, accurate, current and complete information about Yourself as prompted by the purchase form (such information being the “Purchase Data”); and
3.3.1. You must promptly inform Us of all changes, including, but not limited to, changes in Your address and changes in Your credit card used in connection with billing for the Site and Services, if applicable. If You provide any information that is untrue, inaccurate, not current or incomplete, or if We or any of Our authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, We have the right to suspend or terminate Your account and refuse any and all current or future use of the Site and Services, as well as subjecting You to criminal and civil liability. You are responsible for any credit card charge backs, dishonored checks and any related fees that Site incurs with respect to Your account. If You fail to reimburse Us for any credit card chargebacks, dishonored checks, or related fees within thirty (30) days of Our initial demand for reimbursement, You agree that You will pay Us One Hundred ($100) dollars in additional liquidated damages for each fee incurred.
3.3.2. Refunds. We are merely the hosting provider for our Users to display their content and otherwise communicate. We do not warrant the quality or nature of any content, goods and or services supplied by users to other users. Customers who are dissatisfied with content, goods and or quality of service should refrain from any further purchase from an unsatisfactory goods and or services or content provider. Notwithstanding the foregoing, should a User be dissatisfied with our Site or challenge any charges, we will make every effort to resolve the dispute on terms that we, in our sole judgment, deem reasonable. You agree to cooperate in any investigation of a complaint lodged by any User or other person and you further agree to abide any final resolution we determine.
3.3.3. Please report any billing errors or challenges to billing to support@TalkToMe.com. Resolution of billing errors by TLBill.com will be handled immediately. Any fraud or abuse by You in disputing Your transaction with the issuing bank will result in immediate disqualification from future participation and You will be banned from use of Our Site. We take fraud very seriously and will actively report cases of fraud to the appropriate authorities for prosecution.
3.3.4. You agree that neither Us nor any third-party acting on Our behalf shall be liable to You for Your disqualification from future sales or access to the Site or Services. You agree that if You are disqualified by Us, You will not attempt to purchase from Us – using the same or different Purchase Data—without prior written consent from Us.
3.3.5. Content purchased from this Site cannot be swapped or traded. Exchanges will only be given if content is faulty or damaged upon receipt. All content must be exchanged within fifteen (15) days of purchase.
3.3.6. In order to maintain the integrity of the Site and Services, or to investigate complaints, You agree to allow Us to access information You have submitted or created for as long as reasonably required to investigate the complaint or protect the Services. You also agree to allow Us to access Your information to enforce this Agreement, its intellectual property policy, to comply with the law and legal process, to operate systems properly, for our protection and the protection of our users and users.
4. Special Considerations Regarding Minors.
4.1. Age of Majority.
In order to use the Website or any services provided by Us, You must have attained the age of majority in Your jurisdiction. You represent and warrant that You are at least eighteen (18) or twenty-one (21) years of age, depending on the age of majority in Your jurisdiction, and that You have the legal capacity to enter into this Agreement. We may, in Our sole discretion, require that You provide proof that You have attained the age of majority in Your jurisdiction prior to using Our Site or Services.
4.1.1. We specifically disclaim any responsibility or liability for any misrepresentations regarding a User’s age, and We may, in Our sole discretion, monitor any area of the Site or any other records pertaining to the Site for compliance with this Agreement or for any other reason.
4.1.2 You represent and warrant that You will not allow any minor to access this Website. Users should implement parental control protections, such as computer hardware, software, or filtering services, which may help users to limit minors’ access to harmful material. You acknowledge that if Your computer can be accessed by a minor, that You will take all precautions to keep Our Materials from being viewed by minors. You additionally acknowledge that if You are a parent, it is Your responsibility, and not Ours, to prevent your children’s access to any inappropriate content.
4.2. WE HAVE A ZERO TOLERANCE POLICY FOR MATERIAL INVOLVING MINORS AND A ZERO TOLERANCE POLICY REGARDING PEDOPHILES, PEDERASTS OR ANY PEDOPHILIC, PEDERASTIC, OR SIMILAR RELATED ACTIVITY.
4.2.1. All depictions of all persons on Our Website are of persons over the age of eighteen (18) as of the date of the production of the depiction. We take great measures to ensure that no underage models appear in any of Our materials.
4.2.2. If You seek any form of pornographic material involving minors (including so- called “virtual” child pornography), You must exit this Website and cease using Our Services immediately. We do not provide this kind of material and We do not tolerate those who provide this kind of material nor do We tolerate consumers of this kind of material. Content or communications seeking to solicit, lure or entice minors into sexual activity or lewd behavior is also strictly prohibited, and will be treated the same as child pornography. Consistent with federal law, We will cooperate with law enforcement authorities and will notify such authorities if we suspect that You are engaged in any such illegal activities.
4.2.3. In order to further Our zero-tolerance policy You agree to report any images that appear to depict minors on Our Site. If You see any images or other depictions that are questionable, You agree to report these images by emailing us at support@TalkToMe.com.
4.2.4. Include with Your report any appropriate evidence, including the date and time of identification. All reports will immediately be investigated and the appropriate action will be taken.
4.2.5. We willingly and actively cooperate with any law-enforcement agency investigating material involving minors. If You suspect other outside websites are participating in unlawful activities involving minors, please report them to http://www.asacp.org.
5. Images and Content.
5.1. Our Website contains images and content, including but not limited to text, software, images, graphics, data, messages, and other information – some of which may be provided by third parties, including Our Users (collectively, the “Materials”).
5.2. You acknowledge and stipulate that all of the Materials are expressive content that is fully protected by the First Amendment to the United States Constitution. If You are offended by any Materials on the Site, You agree to immediately cease using the Site and Services.
5.3. You acknowledge and understand that some of the Materials contain graphic visual depictions of sexual activity and nudity, graphic audio portions of the same kind of content, and descriptions of sexually oriented and sexually explicit activities. You acknowledge that You are aware of the nature of the Materials provided by Our Website and that You are not offended by such Materials, and to the contrary, that You are accessing this Website specifically because You enjoy such expressive content and You wish to view such Materials. You stipulate that You access this Website freely, voluntarily, and willingly, and for Your own personal enjoyment.
5.4. You agree not to use or access the Website if doing so would violate the laws of Your state, province, or country.
5.5. User-Generated Content.
Our Site permits the submission and transmission of content solely generated by third-parties (“User Generated Content”), as well as the hosting, sharing, and/or publishing of such User Generated Content, which may include Content provided by Our Users. You understand that whether or not such User Generated Content is published, We do not guarantee any confidentiality with respect to any submissions.
5.6. Section 230 Notice.
You acknowledge Your responsibility to prevent minors under Your care from accessing harmful or inappropriate material. You agree not to allow minors to view any such content, and You agree to take responsible measures to prevent them from doing so. Numerous commercial online safety filters are available which may help users limit minors’ access to harmful or inappropriate material. Pursuant to 47 U.S.C. §230(d), You are hereby informed that You can research such services at websites such as: http://www.getnetwise.org or http://www.child-internet-safety.com/internet_filters.php, among others. Please note that We make no representation or warranty regarding any of the products or services referenced on such sites, and We recommend that You conduct appropriate due diligence before purchasing or installing any online filter. You agree to take particular steps to prevent minors from viewing Our Site or the content received via Our Services if Your computer or mobile device can be accessed by a minor. Finally, You agree that if You are a parent or guardian of a minor child, it is Your responsibility, not Ours, to keep any age-restricted content on Our Site or Services from being displayed or accessed by Your children or wards.
5.6.1. Pursuant to the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1), and court decisions interpreting the scope of the CDA, You acknowledge and understand that We operate as the provider of an interactive computer service. Thus, We are immune from, and cannot be held responsible for, claims arising from the publication or transmission of third-party content, which includes content provided by Our Users, as well as the content of other Users and third parties. We do not create such content, and We are not responsible for the publication of remarks or communications of third-parties that may arguably rise to the level of being actionable under federal or state laws including, but not limited to, the publication of material that might be considered defamatory, or violative of privacy or publicity rights. Note, that federal law allows Us to remove or block any content found to be offensive, defamatory, obscene or otherwise violative of our policies, without impacting Our status as the provider of an interactive computer service. In the event that any court finds that any third party communication or third party content on Our Website falls outside of the realm of the immunity provided by Section 230 of the CDA, this shall not be deemed to be a waiver of any legal protections provided by Section 230 for any and all other content posted on Our Website.
5.6.2. Nothing contained in this Agreement is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act, and no third parties are intended to benefit from this Agreement between You and Us.
5.7. License to Use Your Content.
You hereby grant to Us the perpetual, unlimited, royalty- free, worldwide, non-exclusive, irrevocable, transferable license to run, display, copy, reproduce, publish, bundle, distribute, market, create derivative works of, adapt, translate, transmit, arrange, modify, sub-license, export, merge, transfer, loan, rent, lease, assign, share, outsource, host, make available to any person or otherwise use, any text, images, data, video or other information and content You provide on or through this web Site or Services or which is sent to Us or others by e-mail or other correspondence, for any purpose whatsoever while you are a member of the site and in the manor discussed in section 3.2.5. We shall not be subject to any obligations of confidentiality regarding any such information unless specifically agreed by Us in writing or required by law. We shall not be obliged to delete any such information from the Site.
5.7.1. You represent and warrant that You have the right to grant the license set out above.
5.7.2. You may not upload content for which You do not own the copyrights/ license. Any User found uploading material that they do not have rights to will have all their access terminated. We have a ZERO TOLERANCE policy for piracy.
5.7.3. By uploading any photographs, videos or other media of Yourself or other subjects, You hereby swear and represent that You own or control all intellectual property rights with respect to the uploaded contents or have a license to use the content on the site; and You hereby irrevocably grant a non-exclusive right and license to Us to:
22.214.171.124. reproduce, transmit, communicate, display, or distribute Your Content, on or as part of Our Site(s), on other Internet sites, or elsewhere, for promotional or commercial purposes, by means of any technology, whether now known or hereafter to become known;
126.96.36.199. reproduce Your Content in digital form for display on or download from the Internet (alone or in combination with other works, including, but not limited to, text, data, images, photographs, illustrations, animation, graphics, video, or audio segments, and hypertext links); or
188.8.131.52. adapt, modify, or alter Your Content or otherwise create derivative works based upon Your Content; and for all other reasonable promotional or commercial uses either as part of the operation of Our Site(s), or as a promotion or operation of any derivative or related businesses.
5.7.4. By uploading a model release or otherwise representing that subjects depicted in Your content have consented to publication by Us for whatever purpose, You warrant that the information is complete and accurate.
5.8. We, at our sole discretion, may remove any content uploaded to the Site. We also reserve the right, but do not assume the responsibility, to restrict conduct which We deem in our discretion to be harmful to individual users, damaging to the communities that use Our Site or Services, or may be in violation of Ours or any third party’s rights or policies.
6. Restrictions on Use of Website:
6.1. You agree that You will only use the Website for purposes expressly permitted and contemplated by this Agreement. You may not use the Website for any other purposes without Our express prior written consent.
6.2. Without Our express prior written authorization, You may not:
6.2.1. duplicate, translate, reverse-engineer, decompile, disassemble any part of the Website or the Materials contained therein (except as expressly provided elsewhere in this Agreement);
6.2.2. redistribute or create any derivative works based on the Website or any of the Materials contained therein. You agree that any such use is NOT “fair use;”
6.2.3. use the Website or any of the Materials contained therein for any public display, public performance, sale or rental, and You hereby agree and stipulate that any and all such uses are NOT “fair use;”
6.2.4. remove any copyright or other proprietary notices from the Website or any of the Materials contained therein; or
6.2.5. circumvent any encryption or other security tools used anywhere on the Website (including the theft of user names and passwords or using another User’s account and password in order to gain access to a restricted area of the Website, unless otherwise authorized by this Agreement); or use any device, software, computer code, or virus to interfere or attempt to disrupt or damage the Site or any communications on it.
6.3. You agree to all of the terms of Our Acceptable Use Policy, as outlined below:
6.3.1. Acceptable Use Policy. You agree and understand that Our Website and Services enable You to upload or otherwise “post” Your Content to Our Site and/or to communicate with other Users. However, You expressly warrant and represent that Your Content and use does not contain any of the unacceptable
attributes below. Although the Site undertakes no obligation to monitor user content or communication, You expressly agree that You:
184.108.40.206. are solely responsible for the content of your communications;
220.127.116.11. will not violate any law in your use of our forum or our Services;
18.104.22.168. will not engage in any fraudulent or deceptive practice;
22.214.171.124. will not record any voice or video communication with other users;
126.96.36.199. will not violate the terms of this Agreement;
188.8.131.52. will cooperate with all requests from Us for information;
184.108.40.206. will not use Our Services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive any content that is, in Our discretion, defamatory, obscene, harassing, illegal, involves underage participants, or is otherwise objectionable;
220.127.116.11. will not post content that is unlawful, harmful, threatening, abusive, harassing, defamatory, invasive of another’s privacy or right to publicity, or harmful to minors in any way, shape, or form;
18.104.22.168. will not post content that might be considered to be impersonating another person or legal entity;
22.214.171.124. will conduct all communication with our users through our Site and our facilities;
126.96.36.199. will not solicit the sale or exchange of securities nor will you provide investment advice as it pertains to marketable securities;
188.8.131.52. will not post any personally-identifying information about another person without that person’s prior explicit consent;
184.108.40.206. will not post personally-identifying content about yourself, other than information provided during the registration process;
220.127.116.11. will not post content that constitutes SPAM or bulk posting of commercial advertisements for commercial interests;
18.104.22.168. will not post content that is stolen or otherwise infringes upon any trademark, copyright, or other intellectual property rights of any party;
22.214.171.124. will not post content that libels, slanders, or disparages any person or group of people based on race, ethnicity, national origin, religion, sex, or other factors at Our discretion.
126.96.36.199. will immediately cease and desist from any contact with any person who so requests such cessation;
188.8.131.52. will not use Our Services to “stalk” or otherwise harass any other person;
184.108.40.206. will not use Our Services to collect any personal data about other users, including but not limited to using the Services to solicit research, user statistics, or other commercial activities;
220.127.116.11. will not use Our Services to promote, enable, or conduct any illegal activities;
18.104.22.168. will not use Our Services to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive obscene materials in any way;
22.214.171.124. will not use Our Services to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive drugs or other illegal substances in any way.
126.96.36.199. In using or accessing the TalktoMe.com Forum, you agree to comply with the following:
- You will practice good etiquette while creating and replying to posts;
- You will respect other TalktoMe.com users’ privacy;
- You will not impersonate a TalktoMe.com employee or falsely quote a TalktoMe.com employee with malicious intent;
- You will not create “trolling” posts. Trolling is deliberately posting false or provocative information in order to elicit responses from people who really want to help;
- You will not use the Forum to promote or solicit users to participate on another website, service, or business;
- You will not use the Forum to post or exchange obscene, offensive, tasteless, defamatory, hateful, slanderous. or other inappropriate content or speech. or speech to include but not be limited to that involving of referring to anything involving underage minors or children, horror, snuff, necrophilia, blood, asphyxiation, bestiality, non-consensual or forced sex, vomit, feces, urine, excrement, chloroform weapons drugs, intoxication, animal cruelty nor crushing or any other content which may, in our sole judgement, be considered obscene or otherwise violative of our policies;
- You will adhere to all our stated policies; and
- You will not use the Forum or the TalktoMe.com site or services to transmit, route, provide connections to or store any material that infringes the copyrighted works or violates or promotes the violation of the intellectual property rights of any third party. If you believe that your work has been copied on the TalktoMe.com site in a way that constitutes copyright infringement, please refer to Section 11 of the TalktoMe.com User Agreement for instructions on how to file a claim with TalktoMe.com’s Copyright Agent.
188.8.131.52. TalktoMe.com recommends that you do not disclose personal contact information to users. If you do, you do so at your own risk. TalktoMe.com may remove any post that includes personal contact information, such as an email address, phone number, mailing address or instant messenger ID. TalktoMe.com shall have no liability of any kind for any damages or harm that arises from contact between Users of our Site or between Users and Talkers. Out Site is not a conduit for any, in person contact of any kind. This site is not to be used as a means for introduction of escorts, live performers nor any other type of “in person” encounter. Violators of this policy risk immediate termination of access.
184.108.40.206.1. In its sole discretion and at any time, TalktoMe.com may remove any post that violates the above or that TalktoMe.com deems inappropriate.
220.127.116.11. TalktoMe.com reserves the right in its sole discretion, without notice and at any time, to (a) suspend, terminate or discontinue the TalktoMe.com Forums or any portion or feature thereof, or (b) modify the terms and conditions of your use of the TalktoMe.com Forums. All modified terms and conditions will be effective immediately after they are posted herein.
6.3.2. In addition to termination of Your User account or customer access to the Site, any violation of Our Restrictions on Use of Website or Acceptable Use Policy as provided for in this Agreement shall subject You to liquidated damages of Five Thousand ($ 5,000) for each and every violation. In the event that such violation causes any legal, emotional or physical harm to another person, You agree that You shall pay all damages that flow from your misconduct.
18.104.22.168. In Our sole discretion, We may choose to provide You with a warning before assessing damages.
22.214.171.124. We may, in Our sole discretion, assign any such damage claim to a third party who has been wronged by Your conduct.
126.96.36.199. These liquidated damages are not a penalty, and they are an attempt by the parties to reasonably ascertain the amount of actual damage that could occur from such violations. Both parties hereby agree that these amounts are a minimum, and actual damages may be more.
7. USE OF OUR SERVICES AT YOUR OWN RISK.
7.1. We do not evaluate, provide, produce, edit, or control the exchange of information between Callers and Talkers and TalkToMe.com does not provide any information, editorial content or supervision over participants. TalkToMe.com does not verify credentials, qualifications or representations made by those using the Site and does not endorse the content, speech or advice given by any participant. TalkToMe.com assumes no responsibility and shall have no responsibility whatsoever for any harm sustained by those utilizing this forum even if the result of a violation of law by TalkToMe.com or another user of this forum.
7.1.1. TalkToMe.com is merely the facilitator/provider of a forum intended for the use of responsible adults to engage in free expression and the exchange of ideas and speech. TalkToMe.com is not an editor of any speech that occurs on this forum. TalkToMe.com is not, in any way, responsible for the truth, accuracy, completeness, safety, timeliness, quality, legality or applicability of anything said or written by any participant in this forum. You are solely responsible to be a cautious consumer and participant and to refrain from any inappropriate or unsafe exchange of information by any means. You are particularly cautioned against any disclosure of personal identifying information that may be exploited by others who intend harm. If you do choose to disclose personal information, you do so at your own risk. If you ever feel threatened or in danger from any communication facilitated by this forum, please contact the police immediately. WE URGE YOU NOT TO ARRANGE ANY IN PERSON CONTACT THROUGH THIS FORUM.
7.2. TalkToMe.com does not monitor voice or data communication between participants and TalkToMe.com does not endorse, recommend evaluate or warrant any information, products, credentials or services offered by participants in this forum and nothing shall be construed to constitute any kind of guaranty of accuracy or quality by TalkToMe.com. You engage in communications with others through this forum entirely at your own risk and agree to hold TalkToMe.com harmless of and from any and all liability associated therewith.
7.3. You hereby waive any and all claims against TalkToMe.com arising from any and all use of this forum including harm occasioned by contact and or communication with other participants/users of this forum. You further release and agree to indemnify and defend TalkToMe.com and its subsidiaries, officers, directors, users, shareholders, joint venturers, employees, attorneys, partners and affiliates of and from any and all liability of every kind and nature known and unknown, suspected and unsuspected, disclosed and undisclosed, arising in any way from any use or involvement with, direct or indirect, the Site or the Services. You further waive your right to the benefit of all laws that provide for limitations on the effect of general releases concerning unknown or unsuspected claims.
8. Stipulated Liquidated Damages.
8.1. In various provisions in this Agreement, We have outlined liquidated damages amounts to be applied as penalties against You if You violate these specific provisions. You specifically agree to pay these amounts. In agreeing to pay liquidated damages, You acknowledge that this amount is not a penalty, that the actual damages are uncertain and difficult to ascertain, but that this amount represents the parties’ good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
8.2. For any breach of a portion of this Agreement that does not specifically state a liquidated damages amount, You hereby agree that any breach of this Agreement shall result in the greater of liquidated damages of One Hundred ($100) Dollars per occurrence or the actual damages suffered.
8.3. If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to address your misconduct or to pursue injunctive relief against You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages or in order to seek injunctive relief from You. You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
9.Disclaimer of Warranty.
9.1. You expressly agree that use of the Site and Services, or any of the Materials contained therein is at Your own and sole risk. You also understand and agree that any material and/or data downloaded, uploaded or otherwise obtained or transmitted through the use of the Site and Services or any of the Materials contained therein is done at Your own discretion and risk and that You will be solely responsible for any damage to Your computer system or loss of data that results from the download, upload, or transmission of such material and/or data.
9.2. The Site and Services, and all Materials contained therein, are provided “as is” without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, or non- infringement.
9.3. We make no representations or warranties that the Site and Services, or any Materials contained therein, will be uninterrupted, timely, secure, or error free; nor do We make any representations or warranties as to the quality, suitability, truth, usefulness, accuracy, or completeness of the Site and Services or any of the Materials contained therein.
9.4. We make no guarantee that Your Content will be successfully delivered to Our Users whether or not such failure is due to circumstances within Our control or due to unauthorized access to alteration of any data transmission involving Your Content.
9.5. You understand that We cannot and do not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses, or other code that may manifest contaminating or destructive properties. We do not assume any responsibility or risk for Your use of the Internet.
9.6. We make no warranty regarding any goods or services purchased or obtained through the Site and/or Services or any transaction entered into through the Site and/or Services, and We are not responsible for any use of confidential or private information by sellers or third parties.
9.7. The warranties and representations set forth in this Agreement are the only warranties and representations with respect to this Agreement, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between the parties or by operation of law, including warranties of merchantability and fitness for a particular purpose. None of these warranties and representations will extend to any third person.
10. Disclaimer and Indemnifications.
10.1. If We determine that You or any User has used Our Services in violation of any law, Your ability to use the Website may be terminated immediately and We have every right to voluntarily cooperate with law enforcement or private aggrieved parties that We may be legally compelled to do so. We hereby disclaim any liability for damages that may arise from any User providing any services for any purpose that violates any law. You do hereby agree to defend, indemnify and hold Us harmless from any liability that may arise for Us should You violate any law.
10.2. You also agree to defend and indemnify Us should any third party be harmed by Your actions or should We be obligated to defend any claims including, without limitation, any criminal or civil action brought by any party.
10.3. Our Website contains material that may be considered offensive to third parties. You agree to indemnify and hold Us harmless from any liability that may arise from someone viewing such material and You agree to cease review of the Website should You find it offensive.
10.4. You agree to defend, indemnify, and hold harmless Our Website, its corporation, its officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from Your, or You under another person’s authority (including without limitation to governmental agencies), use, misuse, or inability to use the Website or any of the Materials contained therein, or Your breach of any part of this Agreement. We shall promptly notify You by electronic mail of any such claim or suit, and cooperate fully (at Your expense) in the defense of such claim or suit. We reserve the right to participate in the defense of such claim or defense at Our own expense, and choose Our own legal counsel; however, We are not obligated to do so.
10.5. The Site and Services are for Amusement Purposes.
10.5.1. You understand and accept that Our Site and Services are to be used for entertainment and recreational purposes.
10.5.2. You hereby release Us and all other Users from any liability for invasion of privacy, defamation, false light, and related torts, in the event that Your Content is made public—even if it is made public for the sole purpose of amusing others at Your expense.
10.6. We do not pre-approve any of the Users who may be accessible via Our Site and Services. Furthermore, We do not pre-approve the User Generated Content supplied by Users.
10.7. You hereby discharge, acquit, and otherwise specifically release Us, Our parent company, Our agents, employees, officers, directors, shareholders, attorneys, and affiliates, from any and all allegations, counts, charges, debts, causes of action, and claims relating in any way to the use of, or activities relating to the use of, the Site and Services including, but not limited to claims relating to the following:
10.7.1. Sexual Harassment, Negligence, Gross Negligence, Reckless Conduct, Alienation of Affections (to the extent recognized in any jurisdiction), Intentional Infliction of Emotional Distress, Intentional Interference with Contract or Advantageous Business Relationship, Defamation, Violation of Publicity or Privacy Rights, False Light Claims, Intellectual Property, Misrepresentation or any claim based on vicarious liability for Torts or other wrongful acts committed by individuals met on or through the Site and Services, including but not limited to fraud, financial crimes, assault, battery, stalking, rape, theft, cheating, perjury, manslaughter, or murder.
10.7.2. The above list is intended to be illustrative only, and not exhaustive of the types or categories of claims released by You. This release is intended by the parties to be interpreted broadly in favor of Us, and any ambiguity shall be interpreted in a manner providing release of the broadest claims. This release is intended to be a full release of claims, and the parties acknowledge the legally binding nature of this provision, and the nature of the rights given up in connection therewith. Nothing contained in this section is intended to limit the scope of releases and / or indemnification contained elsewhere in this Agreement.
11. Intellectual Property Information.
11.1. The above referenced website names constitute service mark(s) and/or trademark(s). Any word, slogan, or brand appearing on Our Site with a TM designation qualifies as Our trademark or service mark.
11.2. Other companies’ product and service names referenced on Our Site may be trademarks and service marks of their respective companies and are the exclusive property of such respective owners, and may not be used publicly without the express written consent of the owners and/or holders of such trademarks and service marks.
This Website belongs to Us, and We either own or have rights to display all of the Materials thereupon. You may not use any of the Materials without Our express written consent.
11.4. We aggressively enforce Our intellectual property rights. Any infringement will be prosecuted to the fullest extent of the law. This site has adopted a firm policy relating to the termination of repeat infringers. A copy of the policy is available upon request.
11.5. You have no right title and or interest in any Our Site, the telephone numbers or other listings we may provide and you understand that We may change your listing, assigned numbers or any other attribute of your involvement in our Site at any time, without prior notice and in Our sole discretion.
12. Limitation of Liability.
12.1. In no event shall We (or Our licensors, agents, suppliers, resellers, service providers, or any other subscribers or suppliers) be liable to You, or any other third party for any direct, special, indirect, incidental, consequential, exemplary, or punitive damages, including without limitation, damages for loss of profits, loss of information, business interruption, revenue, or goodwill, which may arise from any person’s use, misuse, or inability to use the Website, Services or any of the Materials, including User Generated Content, contained therein, even if We have been advised of the probability of such damages. This is for any matter arising out of or relating to this Agreement, whether such liability is asserted on the basis of contract, tort or otherwise, even if We have been advised of the possibility of such damages.
12.2. In no event shall Our maximum total aggregate liability hereunder for direct damages exceed Ten ($10.00) Dollars. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to You.
13. Defamation & Invasive Material Policy.
13.1. We provide an interactive computer service, and thus We have no liability for third-party content due to Section 230 of the CDA. Nevertheless, We recognize that despite this protection, there may occasionally be content posted by Our Users that is unappreciated by the subject of the User-posted content. It is not Our intention to cause anguish to any person nor harm to any entity, nor to allow through inaction such harm to occur. Accordingly, it is Our policy to respond respectfully to any complaints about User-posted content, or about content that We might have provided.
13.2. If You feel damaged by any User-posted content, or content provided by Us, We will, in Our discretion, take reasonable measures to comply with any reasonable requests.
13.3. You agree that if You have any complaint about any content on Our Website, including (but not limited to) a complaint or claim of defamation (libel or slander), invasion of privacy, false light, trademark infringement, right of publicity claims, or any related or similar tort (from which We are otherwise immune from liability), that You will provide notice to Us by mail at support@TalkToMe.com or fax to 215-627-9026.
13.4. You agree that We shall have a reasonable time after RECEIPT of said notice to evaluate Your concerns.
13.5. After evaluating Your concerns, We will either inform You that We do not believe Your concern is valid, or We will request Your preference regarding an opportunity to cure Your concerns. This cure may, in Our discretion, include one of the following:
13.5.1. We may offer to delete the offending material;
13.5.2. We may offer to modify the offending material;
13.5.3. We may offer You the opportunity to publish a rebuttal to the offending material;
13.5.4. We may engage You and seek any other alternative resolution that will mitigate Your damaged legal interests—whether or not We are legally required to do so; or
13.5.5. We may provide You with some or all identifying information We may have about the person who posted the offending content (if the content was User-posted), but We are under no obligation to do so, and expressly reserve the right not to.
13.6. You acknowledge and agree that upon transmission of Your complaint to Us, You will be considered to have engaged in settlement discussions with Us, and neither party will initiate formal legal action while non-adversarial resolution is in progress. You agree that You will not file any suit unless and until We issue a statement to You that We have taken Our final action, and that no further action will be taken without adversarial proceedings. At that point, You may proceed with arbitration as provided for under this Agreement.
13.7. You acknowledge that once You accept any of Our offers of non-adversarial resolution, that You irrevocably waive any and all possible claims for any allegedly offending material on Our Website and that if You do bring any action against Us that You hereby stipulate that You will bear Your own costs and fees incurred in the action, regardless of the outcome of that action, and that You stipulate that Your damages will be limited to One ($ 1.00) Dollar, and no more, and that You hereby acknowledge that such amount is sufficient and adequate.
13.8. You understand that no part of this Agreement obligates Us to go beyond that required by law, and this Agreement is in place for Your convenience. If We believe that Your requests are unreasonable, We reserve every right to terminate discussions with or file suit against You to recover any legal fees incurred due to harassing or unreasonable requests. Nothing contained in this section shall obligate Us to undertake any specific action with regard to a given complaint, and We reserve all rights relating to resolution of disputes of this nature.
14. Notice of Claimed Copyright Infringement.
14.1. We respect the intellectual property of others, and We ask Our Users to do the same. We voluntarily observe and comply with the United States’ Digital Millennium Copyright Act (“DMCA”). If You believe that Your work has been copied in a way that constitutes copyright infringement, or Your intellectual property rights have been otherwise violated, please provide Our Designated Copyright Agent the following information:
14.1.1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
14.1.2. description of the copyrighted work or other intellectual property that You claim has been infringed;
14.1.3. a description of where the material that You claim is infringing is located on a Site;
14.1.4. your address, telephone number, and email address;
14.1.5. a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
14.1.6. a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
14.2. Send your Notice of Claimed Infringement to support@TalkToMe.com.
15. DMCA Notice and Takedown Procedures.
15.1. We implement the following “notice and takedown” procedure upon receipt of any notification of claimed copyright infringement:
15.1.1. We reserve the right at any time to disable access to, or remove any material or activity accessible on or from the Site or any Materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent.
15.1.2. It is Our firm policy to terminate the account of repeat copyright infringers, when appropriate, and We will act expeditiously to remove access to all material that infringes on another’s copyright, according to the procedure set forth in 17 U.S.C. §512 of the DMCA. Our DMCA Notice Procedures are set forth in the preceding section of this Agreement. If the notice does not comply with that section and §512 of the DMCA, but does comply with three requirements for identifying the site that is infringing according to §512 of the DMCA, We shall attempt to contact or take other reasonable steps to contact the complaining party to help that party comply with the notice requirements.
15.1.3. When the Designated Agent receives a valid notice, We will expeditiously remove and/or disable access to the infringing material and shall notify the affected user. Then, the affected user may submit a counter-notification to the Designated Agent containing a statement made under penalty of perjury that the user has a good faith belief that the material was removed because of misidentification of the material. After the Designated Agent receives the counter- notification, We will replace the material at issue within ten to fourteen (10-14) days after receipt of the counter-notification unless the Designated Agent receives notice that a court action has been filed by the complaining party seeking an injunction against the infringing activity. We reserve the right to modify, alter or add to this policy, and all Users should regularly check back to these Terms and Conditions to stay current on any such changes.
16. DMCA Counter-Notification Procedures.
16.1. If the Recipient of a Notice of Claimed Infringement (“Notice”) feels that the Notice is erroneous or false, and/or that allegedly infringing material has been wrongly removed in response to a Notice as outlined in Section 14.1 above, the Recipient is permitted to submit a counter-notification pursuant to Section 512(g)(2) and (3) of the DMCA. A counter-notification is the proper method for the Recipient to dispute the removal or disabling of material pursuant to a Notice. The information that a Recipient provides in a counter-notification must be accurate and truthful, and the Recipient will be liable for any misrepresentations which may cause any claims to be brought against Us relating to the Content.
16.2. To submit a counter-notification, please provide Our Designated Copyright agent the following information:
16.2.1. a specific description of the material that was removed or disabled pursuant to the Notice;
16.2.2. A description of where the material was located within the Site or the Content before such material was removed and/or disabled. Please provide the specific URL if possible;
16.2.3. a statement reflecting the Recipient’s belief that the removal or disabling of the material was done so erroneously. For convenience, the following format may be used:
“I swear, under penalty of perjury, that I have a good faith belief that the referenced material was removed or disabled by the service provider as a result of mistake or misidentification of the material to be removed or disabled;” and
16.2.4. the Recipient’s physical address, telephone number, and email address. Written notification containing the above information must be signed and sent to: support@TalkToMe.com.
16.3. After receiving a DMCA-compliant counter-notification, Our Designated Copyright Agent will forward it to Us, and We will then provide the counter-notification to the entity who first provided the Notice concerning material in the Recipient’s Content.
16.4. Additionally, within ten to fourteen (10-14) days of Our receipt of the counter- notification, We will replace or cease disabling access to the disputed material provided that We or Our Designated Copyright Agent have not received notice from the entity who first provided the Notice that such entity has filed a legal action pertaining to the disputed material.
16.5. The Site reserves the right to modify, alter or add to this policy, and all users should regularly check back regularly to stay current on any such changes.
17. Links and Linking.
17.1. Some websites which are linked to the Website are owned and operated by third parties. Because We have no control over such websites and resources, You acknowledge and agree that We are not responsible or liable for the availability of such external websites or resources, and do not screen or endorse them, and are not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites or resources.
17.2. You further acknowledge and agree that We shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, goods or services available on or through any such website or resource. If You decide to access any such third party website, You do so entirely at Your own risk and subject to any terms and conditions and privacy policies posted therein.
17.3. Users further acknowledge that use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use for those websites, and not by this Website’s User Agreement or other online contracts, which are incorporated into this Agreement by reference.
17.4. Links to external websites (including external websites that are framed by the Website) or inclusions of advertisements do not constitute an endorsement by Us of such websites or the content, products, advertising, or other materials presented on such website, but are for User’s convenience.
17.5. All Users do hereby agree to hold Us harmless from any and all damages and liability that may result from the use of links that may appear on the Website. We reserve the right to terminate any link or linking program at anytime.
18. EXPORT CONTROL.
18.1. You understand and acknowledge that the software elements of the Materials on the Site may be subject to regulation by agencies of the United States Government, including the United States Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. Diversion of such Materials contrary to United States’ or international law is prohibited.
18.2. You will not assist or participate in any such diversion or other violation of applicable laws and regulations.
18.3. You warrant that You will not license or otherwise permit anyone not approved to receive controlled commodities under applicable laws and regulations and that You will abide by such laws and regulations.
18.4. You agree that none of the Materials are being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals or be used for proscribed activities.
19. NO AGENCY RELATIONSHIP.
19.1. Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein.
Any notice required to be given under this Agreement by Us to You, may be provided by email sent to the email address you have supplied, by general posting on the Site, or personal delivery by commercial carrier such as Federal Express. Notices by customers to Us shall be given by electronic messages unless otherwise specified in the Agreement.
20.2. Change of Address.
Either party may change the address to which notice is to be sent by written notice to the other party pursuant to this provision of the Agreement.
20.3. When Notice is Effective.
Electronic Notices shall be deemed effective Forty Eight (48) hours after transmittal. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the first business day following mailing.
20.3.1. Notices mailed by United States Mail, postage prepaid, registered, or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given Forty Eight (48) hours after transmittal. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient’s business hours, or 9:00 a.m. (recipient’s time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number, and/or recipient for any notice or courtesy copy, hereunder.
20.4. Refused, Unclaimed, or Undeliverable Notice.
Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
21. COMMUNICATIONS NOT PRIVATE.
Unless otherwise designated by Us as private, all communications occurring on the Site are public and available to other Users. All messages transmitted to Us shall be deemed to be readily accessible to the general public. Visitors should not use this Site to transmit any communication for which the sender intends only the sender and the intended recipient(s) to read. Notice is hereby given that all messages entered into this Site can and may be read by the agents and operators of this service, regardless of whether they are the intended recipients of such messages.
22. FORCE MAJEURE.
We shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond Our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay the Site’s performance.
23. General Provisions.
23.1. Governing Law.
This Agreement and all matters arising out of, or otherwise relating to, this Agreement shall be governed by the laws of the state of Pennsylvania, excluding its conflict of law provisions. The sum of this paragraph is that any and all litigation permitted under this Agreement must be, without exception, brought to court and litigated in Philadelphia County, Pennsylvania.
23.1.1. All parties to this Agreement agree that all litigation permitted under this Agreement shall be tried and/or litigated exclusively in the state and federal courts located in Philadelphia County, Pennsylvania.
23.1.2. The parties agree to exclusive jurisdiction in, and only in, Philadelphia County, Pennsylvania.
23.1.3. The parties agree to exclusive venue in, and only in, Philadelphia County, Pennsylvania.
23.1.4. The parties additionally agree that this choice of venue and forum is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the parties with respect to, or arising out of, this Agreement in a jurisdiction other than that specified in this paragraph.
23.1.5. All parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any litigation permitted under this Agreement.
23.1.6. All parties stipulate that the state and federal courts located in Philadelphia County, Pennsylvania shall have personal jurisdiction over them for the purpose of any litigation permitted under this Agreement that is not otherwise subject to the arbitration provisions, infra.
23.1.7. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.
23.1.8. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law if such enforcement becomes necessary.
23.1.9. Right to Injunctive Relief. Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach, and that. in any litigation permitted under this Agreement, an aggrieved party shall therefore be entitled to seek injunctive relief, in addition to seeking all other remedies available at law or in equity.
23.2. Binding Arbitration.
If there is a dispute between the Parties arising out of or otherwise relating to this Agreement, the Parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the Parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either Party must submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims by Us under applicable worker’s compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other injunctive or equitable relief. The arbitration shall be conducted in Seminole County, Pennsylvania, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes.
23.2.1. The Arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this User Agreement; and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS.
23.2.2. No waiver of right to arbitration. There shall be no waiver of the right to arbitration unless such waiver is provided affirmatively and in writing by the waiving party to the other party. There shall be no implied waiver of this right to arbitration. No acts, including the filing of litigation, shall be construed as a waiver or a repudiation of the right to arbitrate.
23.2.3. The First Amendment applies to arbitration proceedings. Any arbitration tribunal shall consider the First Amendment to the United States Constitution to be in force and effect between the parties. Both parties stipulate to the applicability of the First Amendment’s protection of free speech, expression, and association, and both parties stipulate that case law interpreting the First Amendment shall be admissible and considered to be binding authority upon the Arbitrator.
The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be.
If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
23.5. Attorneys’ Fees.
In the event any Party shall commence any claims, actions, formal legal action, or arbitration to interpret and/or enforce any of the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, if We prevail in any such action or proceeding You shall pay, in addition to all other available relief, Our reasonable attorneys’ fees and costs incurred in connection therewith, including attorneys’ fees incurred on appeal. If you prevail, we shall not be liable for any of Your attorney’s fees.
23.6. Complaints – California Residents.
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at: http://www.dca.ca.gov/online_services/complaints/consumer complaint.shtml.
23.7. No Waiver.
No waiver or action made by Us shall be deemed a waiver of any subsequent default of the same provision of this Agreement. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
23.9. Complete Agreement.
This Agreement constitutes the entire Agreement between the parties with respect to Your access and use of the Website and the Materials contained therein, and Your Usership with the Website, and supersedes and replaces all prior understandings or agreements, written or oral, regarding such subject matter.
23.10. Other Jurisdictions.
We make no representation that the Website or any of the Materials contained therein are appropriate or available for use in other locations, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the Website from such locations do so on their own initiative and are solely responsible for determining compliance with all applicable local laws.
24. Photo Policy.
We encourage Talkers to upload photos in order to enhance their listings. Callers may also upload photos. There are some restrictions on the content of the photos:
- Users may not post any photos containing pornographic material on the public site, including photos of sex toys and cartoon depictions of pornography or sexual activity;
- Users may not post any photos containing nudity to a Talker’s listing, homepage or elsewhere on the public site. This includes photos with models wearing transparent clothing;
- notwithstanding the foregoing, Users may post photos to private galleries and send Mail containing nude images, provided that any such Mail and post containing nude images complies with this Photo Policy and the User Agreement;
In no event may images of children, whether nude, clothed or partially clothed, be posted in Mail or in any area of the Site, including Talker listings.
- Users may not upload, post or otherwise transmit any photo which is unlawful, harmful, threatening, harassing, tortuous, defamatory, infringing, vulgar, obscene, hateful, racially, or ethnically objectionable or invasive of another’s privacy; and
- Users may not upload or post unauthorized advertising or promotional materials, or any other photo which they do not have the right to transmit under any law or contractual or fiduciary relationship. This includes any content that infringes any patent, trademark, trade secret, copyright or any other proprietary rights of any party, or material protected by intellectual property laws, right of privacy or publicity or any other applicable law, unless having all necessary contracts or consents.
24.1. All photos, whether posted publicly or privately transmitted, are the sole responsibility of the person from which the photo originated. TalktoMe does not control photos transmitted through Mail or posted on Talkers’ home pages, and, as such, does not guarantee the accuracy, integrity or quality of such.
24.2. Photos shall not contain any watermark or web address that is not owned by the user who uploaded the content.
24.3. Although TalkToMe does not accept responsibility for these photos, TalktoMe does reserve the right to remove at any time, without notice, a photo or image that violates our User Agreement.
24.5. This Photo Policy forms part of the User Agreement and is incorporated by reference therein. Capitalized terms not defined herein will have the meanings set forth in the User Agreement and related policies.
25. 18 U.S.C. 2257 Statement.
TalkToMe.com requires all Members, and users who access or use any area of the TalkToMe.com Site to be eighteen (18) years old or older.
TalkToMe.com acts as a technology service to allow Members to share information, entertainment services or other products or services among themselves. TalkToMe.com does not evaluate, provide, produce or control the Member Services, or information or exchanges between Members, in any manner. TalkToMe.com does not itself provide any content, information, entertainment services or other products or services, nor verify, guarantee or make any representations regarding the identity or qualifications of any Member. TalkToMe.com does not make editorial or managerial decisions concerning Member listing content, sexually explicit or otherwise.
By using the TalkToMe.com service, Members are bound by the Member Agreement to follow all applicable federal, state and local laws, regulations and ordinances relating to obscene and indecent content, communications, and record keeping obligations. Members are solely responsible for the content provided and the content on listings created under their TalkToMe.com profile accounts and are solely responsible for ensuring that they are in compliance with all applicable laws and regulations, including but not limited to providing certain record location information under 18 USC 2257 and corresponding regulations where applicable.
Where applicable, Members shall adhere to the requirements of record keeping laws such as 18 U.S.C. 2257 and the code of regulations applicable thereto including, but not limited to stating where records required under those laws and regulations are located or maintained with respect to their TalkToMe.com Member accounts or providing information so that such record locations may be readily ascertained.