EFFECTIVE JULY 17, 2006
LAST MODIFIED SEPTEMBER 13, 2006 This Content Submission Agreement and Release (the “Agreement”) constitutes a legal agreement between You (“You”) and USA MULTIMEDIA, LLC (the “Company”) and describes the terms and provisions applicable to Your submission of information, data, content or other materials (the “Content”) to the Internet domain and sub-domains owned or operated by the Company at www.blackcuties.com (the “Site”). You must read, agree with and accept all of the terms and provisions contained in this Agreement, including the terms and provisions expressly set forth below and those incorporated by reference, before Your submission of Content to the Site is authorized. The above named parties are sometimes herein referred to singularly as a “Party” and collectively as the “Parties”. This Agreement will be governed by the Electronic Signatures in Global and National Commerce Act (the “E-Sign Act”). You manifest Your agreement to the terms and provisions contained herein by any act demonstrating Your assent, including clicking any button containing the words “I Agree” or similar terminology or by submitting Content to the Site, whether You have read this Agreement or not. If You do not agree, You must not submit Content to the Site. You have the right to withdraw Your consent to use the E-Sign Act by emailing the Company. Your consent to use the E-Sign Act is limited to providing the information on this form. Access to this electronic record requires a computer and web browser program such as Internet Explorer™, Netscape™, Safari™, Opera™, Mozilla™ or Firefox™. A current version of this Agreement is maintained at www.blackcuties.com/csa.php. 1 Incorporated Terms & Provisions 1.1 The terms and conditions of the Company’s Site Terms of Service Agreement located at www.blackcuties.com/tos.php are hereby incorporated by reference as if fully set forth herein. 1.2 The terms and provisions of the Company’s Privacy Policy located at www.blackcuties.com/privacy.php are hereby incorporated by reference as if fully set forth herein. 2 Content Submission & Ownership -OR- License 2.1 The ability to submit Content to the Site is available only to individuals
who can form legally binding contracts under applicable law and are eighteen
(18) years of age or older. 2.3 You agree not to bypass any age verification, security or submission feature of the Site. You understand that the Company does not assume any responsibility or liability for any Content submissions, including without limitation, those containing misrepresentations regarding Your age or the age of any identifiable person contained within such Content. 2.4 Content that You submit, transfer, post or otherwise provide to the Site will not: (A) be false, inaccurate or misleading or promote illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (B) involve the transmission of unsolicited communications; (C) infringe any third party’s intellectual property, copyright, patent, trademark, trade secret, publicity rights, privacy rights or other proprietary rights; (D) violate any local, state, federal or international law or regulation, including
without limitation, those governing export control, consumer protection, unfair
competition, anti-discrimination, false advertising, deceptive trade practices,
intellectual property infringement, securities transactions or any other applicable
law or regulation; (F) exploit people under eighteen (18) years of age in a sexual or violent manner or suggest, in any way or manner, that the depictions contained therein are of individuals under eighteen (18) years of age; (G) suggest, in any way or manner, that the models or performers contained therein are under eighteen (18) years of age; (H) solicit contact or other personal information from anyone under eighteen
(18) years of age; (M) contain instructional information regarding illegal activities such as the construction or purchase of illegal weapons, violation of an individual’s rights of privacy or likeness or the provision or creation of computer viruses; (N) solicit passwords or personal identifying information for any commercial or unlawful purpose or promotes password trading or hacking; or (O) contain personal information regarding any other user of the Site or third party, including without limitation, social security numbers, credit card numbers, telephone numbers, street addresses, names, URLs, instant messaging or email addresses. 2.5 Nothing in this Agreement grants either Party ownership or other rights except in accordance with the terms and provisions of this Agreement. 2.6 You agree to comply with all applicable local, state, federal and international laws and regulations related to the submission of Content to the Site. 2.7 You hereby irrevocably grant, release, convey and assign to the Company and its successors, assigns, affiliates, licensors and suppliers, together with all of their respective officers, directors, employees and consultants all right, title and interest in the Content and agrees that the Company will irrevocably and exclusively own all worldwide right, title and interest in the Content in perpetuity, including copyright, with no rights whatsoever, expressed or implied, reserved by You. You warrant that You have the authority to grant such rights and that the holder of any intellectual property or other proprietary rights in the Content has assigned or waived such holder’s rights to the extent necessary to grant such rights. 2.7 By submitting, transferring, posting or otherwise providing Content to the Site, You grant the Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right, including a waiver of any applicable moral rights, to exercise the copyright, likeness and publicity rights in such Content. You warrant that You have the authority to grant such license and that the holder of any intellectual property or other proprietary rights in the Content has licensed, assigned or waived such holder’s rights to the extent necessary to grant such license. 2.8 Content You submit, transfer, post or otherwise provide to the Site may be used by the Company for any purpose, commercial or otherwise, including without limitation, reproduction, disclosure, display, performance, transmission, publication or broadcast. The Company is free to use any ideas, concepts, know-how, hypothesis, premise or technique contained in the Content or any other communication made by You to the Company or the Site for any purpose whatsoever, including without limitation, developing, manufacturing and marketing new products or services unique and proprietary to the Company. 2.9 You hereby irrevocably grant, release, convey and assign to the the Company and its successors, assigns, affiliates, licensors and suppliers, together with all of their respective officers, directors, employees and consultants the sole and exclusive right, permission and authority to use, reuse, publish and republish Your name, likeness, image, voice, appearance, persona, sobriquet, personal property, signature and performance whether recorded on or transferred in the Content and irrevocably grant and convey all rights, permission, releases clearances and authority therefore, including without limitation, the sole and exclusive right to record, reproduce, modify, adapt, mix, distribute to the public by sale or other transfer, publish and publicly perform or display in whole or part in any media, now known or later developed, including without limitation, analog and digital audiovisual, photographic and printed material. 2.10 You understand and stipulate that you are aware of the nature of the Site and that the Site contains and is intended to contain, only information, data, content or other materials fully protected by the First Amendment to the United States Constitution. 2.11 You may submit, transfer, post or otherwise provide Content to the Site only by completing an online registration form in accordance with the terms and provisions provided in the Company’s Site Terms of Service Agreement located at www.blackcuties.com/tos.php. Registration and submission of Content is void where prohibited. 2.12 Certain content is strictly forbidden and prohibited from submission to
the Site, including without limitation, text descriptions and visual depictions
of or hyperlinks to: 2.14 The terms and provisions of this Section are non-exclusive and the Company reserves the right, in its sole discretion, to edit, remove, modify or delete Content You submit, transfer, post or otherwise provide to the Site for any reason and at any time without notice to You. 3 Disclosures Regarding Content Submission & Accessible Information 3.1 You understand and agree that your image, likeness, contact and other personal information will be publicly accessible, available, retrievable and searchable on a worldwide basis via the Internet as a result of submitting Content to the Site and accept sole responsibility for the consequences or effects resulting therefrom. 3.2 You understand and agree that members of the Site may use any contact and other personal information resulting from Your submission of Content to the Site to contact or attempt to contact your electronically or in person and accept sole responsibility for the consequences or effects resulting therefrom. 3.3 You understand and agree that the public accessibility of your contact and other personal information resulting from your submission of Content to the Site may result in certain undesirable consequences or effects for You, Your friends or family, including without limitation: (A) fraud or other illegal activity; (B) harassment, assault, rape, robbery and other violent or sexual crimes that could possibly result in injury or death; (C) “stalking,” invasion of privacy and unwanted solicitations or gifts; (D) unwanted phone calls, letters, email or other unsolicited communications; (E) surveillance, photographs or audiovisual recordings taken without Your consent, authorization or knowledge; (F) theft, misuse, exploitation or abuse of contact, personal, financial or other sensitive information, “blackmail” and identity theft; (G) unwanted or unexpected publicity, embarrassment, shame, ridicule, scandal, scorn, disregard, disparagement, reproach and indignity; (H) false, misleading, disparaging, unflattering, abusive, threatening, obscene, racist, hateful, defamatory or libelous comments or statements regarding You or Your personal or financial information, personality or ethnic, racial, sexual or physical characteristics or qualities; (I) solicitations requesting or encouraging You to enter contests, sweepstakes, barter, advertising and pyramid schemes; or (J) solicitations requesting or encouraging You to engage in prostitution or other illegal services. 4 Warranty Disclaimer 4.1 EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE IN THIS AGREEMENT, YOU UNDERSTAND AND AGREE THAT YOUR SUBMISSION OF CONTENT TO THE SITE IS AT YOUR OWN RISK AND THE COMPANY, ITS AFFILIATES AND SUPPLIERS PROVIDE SUCH SERVICES “AS IS” AND “AS AVAILABLE”, WITHOUT ANY EXPRESS, IMPLIED OR STATUTORY WARRANTIES, REPRESENTATIONS, ENDORSEMENTS OR CONDITIONS. THE COMPANY, ITS AFFILIATES AND SUPPLIERS SPECIFICALLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; (B) THAT THE SITE OR CONTENT SUBMISSION SERVICES CONTAINED THEREIN OR CONSTITUTING A PART THEREOF WILL MEET ANY REQUIREMENTS OR WILL BE AVAILABLE, ACCURATE, RELIABLE, CORRECT, USEFUL, TIMELY, UNINTERRUPTED, SECURE OR FREE FROM DEFECTS OR ERROR, INCLUDING WITHOUT LIMITATION, TRANSMISSION OR RECEPTION OUTAGES, BLOCKAGES, WEAKNESSES, STATIC, VIRII, WORMS, TROJAN HORSES, MALICIOUS CODE OR OTHER HARMFUL COMPONENTS OR EVENTS; (C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF THE COMPANY, ITS AFFILIATES OR SUPPLIERS. 4.2 Some states and foreign countries do not permit the exclusion or limitation of implied warranties. Therefore, some or all of the above limitations may not apply. There may also be other legal rights which vary from state to state. 4.3 No representative, agent, employee or other person is authorized to make any modifications, extensions or additions to any warranty or disclaimer contained herein. 5 Limitation of Liability 5.1 EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT OR AS OTHERWISE REQUIRED BY APPLICABLE LAW, NEITHER THE COMPANY NOR ITS AFFILIATES OR SUPPLIERS, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR CONSULTANTS OR ANY OTHER THIRD PARTY MENTIONED AT THE SITE WILL BE LIABLE FOR DAMAGES OF ANY KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION: (A) THOSE RESULTING FROM LOST PROFITS, LOST DATA, LOST OPPORTUNITY or BUSINESS INTERRUPTION; (B) DIRECT, INDIRECT, COMPENSATORY, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF THE RELIANCE ON OR USE, MISUSE, INABILITY TO USE, RESULTS OF USE OR PERFORMANCE OF THE SITE AND ANY THIRD PARTY SITES OR THE MATERIALS, INFORMATION, MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, DEFECTS, DELAYS IN OPERATION, TRANSMISSION OR FAILURE THEREOF OR LINKS CONTAINED AT ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (C) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES, LIABILITIES OR COSTS, INCLUDING LEGAL OR ATTORNEYS’ FEES, RESULTING DIRECTLY OR INDIRECTLY OUT OF OR OTHERWISE ARISING IN CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT OR OTHER PROCEEDING BASED ON A CONTENTION THAT ACCESS, VIEWING OR USE OF THE SITE OR ITS CONTENT, INCLUDING SUCH MATERIALS SUPPLIED BY YOU OR A THIRD PARTY, INFRINGES THE COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, CONFIDENTIALITY, PUBLICITY, PRIVACY OR OTHER INDUSTRIAL, CONTRACTUAL OR INTELLECTUAL PROPERTY RIGHTS OF ANY PARTY. THIS LIMITATION APPLIES TO THE ACTS, OMISSIONS, NEGLIGENCE AND GROSS NEGLIGENCE OF THE COMPANY, ITS AFFILIATES OR SUPPLIERS and ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR CONSULTANTS OR ANY OTHER THIRD PARTY MENTIONED AT THE SITE WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO A CAUSE OF ACTION AGAINST THE COMPANY BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY. YouR SOLE AND EXCLUSIVE REMEDY REGARDING ANY OF THE FOREGOING IS TO DISCONTINUE USE OF THE SITE AND ITS CONTENT. 5.2 Under no circumstances will the Company be responsible or liable for any loss or damage, including personal injury or death, resulting from Your submission of Content to the Site or from the conduct of any users or members of the Site or any third party, whether occurring online or offline, including without limitation, the items listed in Section 3.2. 5.3 The aggregate liability of the Company, its suppliers or distributors to You or any third parties in any circumstance is limited to the amount paid, if any, by You to the Company for the use of the Site, but will not, in any event, exceed one-hundred United States dollars ($100). 5.4 The Company assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft, destruction, unauthorized access to or alteration of any Content You submit to the Site. 5.5 The Company is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or the Site or combination thereof, including without limitation, any injury or damage to users, members of the Site, any third party or to any person's computer related to or resulting from Your submission of Content to the Site or from the conduct of any users or members of the Site or any third party, whether occurring online or offline, including without limitation, the items listed in Section 3.2. 5.6 Some states and foreign countries do not permit the exclusion or limitation of incidental or consequential damages. Therefore, some or all of the limitations above may not apply to You to the extent they are prohibited or superseded by state or national provisions. You may also have other legal rights which vary from state to state. 5.7 In jurisdictions not allowing the exclusion or limitation of incidental or consequential damages, the liability of the Company, its successors, assigns, affiliates, licensors and suppliers, together with all of their respective officers, directors, employees and consultants will be limited to the fullest extent permitted by applicable law. 6 Indemnification 6.1 You hereby agree to defend, indemnify and hold harmless the Company, its affiliates and suppliers, together with all of their respective officers, directors, employees and consultants from and against any and all claims, civil and criminal liability, judgments, penalties, debts, taxes, damages and all costs and expenses arising out of or resulting from this Agreement, the use or operation of the Site, the rights of any third party, any violation of this Agreement or any violation of local, state or federal law, regulation or statute, including without limitation: (A) any claim, action or allegation that the Site or any Content You submit, transfer, post or otherwise provide to the Site infringes or violates any third party’s copyright, patent, trade secret, trademark, right of publicity or right of privacy, contains any defamatory content or violates any local, state or federal law, regulation or statute, including without limitation, any claim of personal injury or product liability; (B) any claim, action or allegation brought against the Company by You or any third party arising out of or relating to Your submission of Content to the Site; (C) any claim, action or allegation brought against the Company by You or any third party arising out of or relating to your image, likeness, contact and other personal information being publicly accessible, available, retrievable and searchable on a worldwide basis via the Internet; (D) any claim, action or allegation brought against the Company by You or any third party arising out of or relating to any use of Your contact and other personal information by any user or member of the Site or any third party; (E) any claim, action or allegation brought against the Company by You or any third party arising out of or relating to contact or attempted contact with any user or member of the Site or any third party electronically or in person; (F) any claim, action or allegation brought against the Company by You or any third party arising out of or resulting from the conduct or actions of any user or member of the Site or any third party, whether occurring online or offline, including without limitation, the items listed in Section 3.2; (G) any fraud, manipulation or other breach of this Agreement or other policies and agreements by You; (H) Your use of the Site, Your submission of Content to the Site or use of Your user name by You or any third party; and (I) any reasonable attorneys’ fees resulting from any breach of any warranty or representation under this Agreement. 6.2 The Company reserves the right to exclusively defend and control any dispute and You hereby agree that You will fully cooperate and assist in any such defense. 6.3 The Company will have the right to participate in its defense and hire counsel of its choice, at Your expense. You will not settle any action or claims on the Company’s behalf without the prior written consent of the Company. 7 Deactivation, Suspension & Termination 7.1 This Agreement will become effective upon Your manifestation of consent to its terms occurs or by Your submission of Content to the Site and will remain in force at all times thereafter unless terminated by the Company pursuant to this Agreement. 7.1 Without limiting other remedies, the Company, in its sole discretion, May deactivate, suspend or terminate Your ability to submit, transfer, post or otherwise provide Content to the Site immediately without notice for any reason. 7.2 You agree that neither the Company nor any third party acting on its behalf will be liable to You for any termination of Your ability to submit, transfer, post or otherwise provide Content to the Site. You agree that if Your account is terminated, You will not attempt to re-register as a member or attempt to submit, transfer, post or otherwise provide Content to the Site without the prior written consent of the Company. 8 Governing Law & Dispute Resolution & Venue 8.2 All parties to this Agreement agree that all actions or proceedings arising in connection with this Agreement or any services or business interactions between the parties that may be subject to this Agreement will be tried and/or litigated exclusively in the state and federal courts located in Orange County, Florida. 8.3 The Parties agree to exclusive jurisdiction and venue in Orange County, Florida. 8.4 The Parties agree that the foregoing choice of venue and forum is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the Parties with respect to all matters arising out of or otherwise relating to this Agreement in a jurisdiction other than that specified herein. 8.5 The 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 proceeding brought in accordance with this Agreement or with respect to any dispute under this Agreement whatsoever. 8.6 The Parties stipulate that the state and federal courts located in Orange County, Florida will have personal jurisdiction over each and any of them for the purpose of litigating any dispute, controversy or proceeding arising out of or otherwise relating to this Agreement or the relationship between the Parties contemplated thereby. 8.7 The Parties hereby authorize and accept service of process sufficient for personal jurisdiction in any action against it, as contemplated 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. 8.8 Any final judgment rendered against a party in any action or proceeding will 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. 8.9 You agree that any and all disputes, claims or controversies arising from or relating to this Agreement or the breach, termination or validity thereof which cannot be resolved informally will be resolved individually, without resort to any form of class action or consolidation in any arbitration with any dispute, claim or controversy of any other party and will be submitted to binding arbitration in accordance with the commercial rules of the American Arbitration Association then in effect. 8.10 The arbitration panel will consist of one (1) neutral arbitrator if the amount in controversy is less than twenty-thousand United States Dollars ($20,000.00). Otherwise the panel will consist of three (3) neutral arbitrators, each an active, licensed attorney with at least five (5) years of experience in the primary area of the law as to which the dispute relates. 8.11 The arbitration will be in the English language in Orange County, Florida. 8.12 The arbitration panel will determine issues of arbitrability but may not limit, expand or otherwise modify the terms and provisions contained herein. 8.13 Any award made pursuant to this Section: (A) will be a bare award limited to a holding for or against a Party and affording such remedy as is deemed equitable, just and within the scope of this Agreement; (B) will be without findings as to issues, including without limitation, copyright, trademark or patent validity or infringement or a statement of the reasoning on which the award rests: (C) may, in circumstances other than patent disputes, include injunctive relief; (D) will be made within four (4) months of arbitration panel appointment; and (E) may be entered in any court of competent jurisdiction. 8.14 The requirement for arbitration will not be deemed a waiver of any right of termination under this Agreement and the arbitration panel is not empowered to act or make any award other than based solely on the rights and obligations of the Parties prior to any such termination. 8.15 Each Party will bear its own expenses, but those related to the compensation and expenses of the arbitration panel will be borne equally. 8.16 The arbitration panel will not have authority to award punitive or damages in excess of compensatory damages and each Party irrevocably waives any claim thereto. 8.17 The Parties, their representatives, participants and the arbitration panel will hold the existence, content and result of the proceedings in confidence. 8.18 Notwithstanding the foregoing, the Company reserves the sole and exclusive right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction, whether in the United States or in a foreign country, to collect any fees, recover damages or obtain injunctive or other relief relating to the Site or intellectual property if, in the sole opinion of the Company, such action is necessary or desirable. (A) You hereby consent and agree to irrevocably submit to the exclusive personal jurisdiction of such courts, accept service of process by mail and irrevocably waive any available jurisdictional, venue or inconvenient forum objections to such court. (B) You hereby agree that such action will not be deemed a waiver of the obligation to arbitrate. 8.19 In the event You file an action contrary to the foregoing provisions, the Company may recover all reasonable attorney’s fees and costs from You related to such action. 9 General Provisions 9.1 No action of the Company, other than an express written waiver or amendment, may be construed as a waiver or amendment of any of this Agreement. 9.2 Should any clause of this Agreement be found unenforceable, wherever possible this will not affect any other clause and each will remain in full force and effect. 9.3 You agree that this Agreement may be automatically assigned by the Company, in its sole discretion, to a third party in the event of a merger or acquisition. 9.4 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such Section. 9.5 Any failure to act with respect to a breach of the terms and provisions of this Agreement does not waive any right by the Company to act with respect to subsequent or similar breaches. 9.6 All provisions of this Agreement that by their nature should survive termination will survive termination, including without limitation, provisions related to intellectual property, warranty disclaimers, general releases, limitations of liability, indemnity, arbitration, governing law and the general provisions. 9.7 You also may be subject to additional terms and provisions that may apply when You use affiliate or third party services, sites, content or software. 9.8 Should the Company prevail in any action or proceeding to enforce rights under this Agreement, it will be entitled to recover its costs and attorneys’ fees from You. 9.9 You agree that You are subject to the terms and provisions contained in this Agreement and any additional policies applicable to the Site, which may be posted from time to time. All such posted policies or rules are effectively immediately upon posting and are hereby incorporated by reference into this Agreement. 9.10 The provisions of this Agreement will be binding upon and will inure to the benefit of the Parties, their heirs, administrators, successors and assigns. 9.11 You may not assign this Agreement or the rights and obligations hereunder to any third party under any circumstances. 9.12 You will be solely responsible for all costs and expenses incurred arising out of or relating to this Agreement. 9.13 You understand and agree that if You are located in any United States or international jurisdiction where any common, statutory, regulatory, codified or other law, rule or regulation makes accessing the Site or any materials contained therein inappropriate, illegal or subject to consents or permissions that You have not obtained or voids this Agreement in whole or in part, then You are not authorized to access the Site or any materials contained therein. 9.14 The Site contains features that may allow You to collect data from, control
or monitor computers running the Site. You hereby agree to hold the Company
harmless from and against any damages, claims, losses, settlements, attorney’s
fees and other expenses related to any such activities. 10.1 The Company reserves the right to revise this Agreement from time to time and You hereby agree to any such revision, which will be deemed in force and enforceable upon posting. The updated or edited version of this Agreement 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. 10.2 If this Agreement is revised, the “Last Modified” date at the top of this Agreement will reflect the date of such revision. You agree to periodically visit the web page containing this Agreement and to refresh the contents by using your web browser’s “Refresh” button when doing so. 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 the web page containing this Agreement, then You may presume that nothing in this Agreement has been revised since the last time You read it. If the “Last Modified” date has changed, the Agreement has been revised. 10.3 If You fail to periodically review this Agreement to determine if any of the terms and provisions have changed, You assume all responsibility for such omission and agree that such failure constitutes Your affirmative waiver of Your right to review the revised terms. 11 General Release 11.1 In the event You have a dispute with other users of the Site or any third party site, You release the Company, its successors, assigns, affiliates, licensors and suppliers, together with all of their respective officers, directors, employees and consultants from claims, demands and damages, both actual and consequential, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. 11.2 If You are a California resident, You waive California Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” 12 No Agency 12.1 No agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created herein. 13 Force Majeure 13.1 Neither You nor the Company will be liable for or will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform resulting from causes or conditions that are beyond the affected Party’s reasonable control that it is unable to overcome through the exercise of commercially reasonable diligence. If any such event occurs, the affected Party will give written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event. 14 Severability 14.1 If any court or other tribunal of competent jurisdiction hereof holds any term, clause or provision of this Agreement invalid or unenforceable, then such term, clause or provision will be eliminated, severed or limited to minimum extent necessary such that this Agreement will otherwise remain in full force and effect. 15 California Resident Complaints 15.1 The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 North Street, #501, Sacramento, CA 95814 or by telephone at (916) 445-1254. 16 Communications Not Private 16.1 The Company does not provide any facility for sending or receiving private or confidential electronic communications. All messages transmitted to Site will be deemed to be readily accessible to the general public. 16.2 The Site should not be used to transmit any communication for which the sender intends only the sender and the intended recipient to read. Notice is hereby given that all messages entered into the Site can and may be read by the Company and its agents, regardless of whether they are the intended recipients of such messages. 17 Entire Agreement 17.1 This Agreement and the terms, clauses and provisions hereof, as well as those incorporated by reference, constitutes the entire understanding and agreement of the Parties , revokes and supersedes all prior oral or written agreements and is intended as a final expression of the Agreement between the Company and You. 17.2 You agree that You are not entering into this Agreement in reliance on any statements, representations or promises other than those contained herein. 17.3 This Agreement will take precedence over any other documents, incorporated herein or otherwise, which may conflict with this Agreement. 17.4 This Agreement will not be modified or amended except in writing signed
by the Parties, specifically referring to this Agreement. |