I. INTRODUCTORY PROVISIONS:
1. Hereinafter, the user/subscriber/viewer of any website owned and/or operated by BREATHLESS WHISPERS will be referred to as "you," "the user" or by other similar syntax.
2. Hereinafter, BREATHLESS WHISPERS will be referred to as "we," us," or by other similar syntax.
3. Hereinafter, whichever website you have viewed or subscribed to shall be referred to as SITE. When the HOURGLASS GROUP LTD/BREATHLESS WHISPERS network of websites is collectively discussed, it will be referred to as SITES.
II. IMAGES AND CONTENT:
A. These SITES contain images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, and any other World Wide Web Site owned, operated, licensed, or controlled by SITE (collectively, "Materials").
B. All Materials displayed on the SITE are protected by the First Amendment rights to Free Speech, Free Expression, and Freedom of the Press, and parallel provisions of other constitutional provisions and state constitutions. You acknowledge SITE may offer online content that could be deemed "adult" or "erotic" in nature. Additionally, you are on notice some of the Materials presented on the SITE may contain graphic visual depictions, graphic audio, and descriptions of sexually oriented, explicit, offending, or disturbing activities. You acknowledge you are aware of the nature of the Materials provided by SITE, you are not offended by such Materials, and you access SITE freely, voluntarily, and willingly. You also acknowledge this SITE is intended to contain only images protected by the First Amendment to the United States Constitution.
C. If you are seeking information regarding illegal activities, please leave this SITE immediately. You agree you are aware of the community standards of your local community, and you will only access the content on the SITE if you believe, upon diligent investigation, the content on the SITE does not offend the community standards prevalent in your community.
D. You further agree not to use or access SITE if doing so would violate the laws of your state, province or country.
III. Age of Majority. You represent and warrant you are at least 18 or 21 years of age, depending on the age of majority in your jurisdiction, and you have the legal capacity to enter into this Agreement. If you are not at least 18 or 21 years of age, depending on the age of majority in your jurisdiction, you must exit SITE immediately and may not use or access SITE, print or download any Materials from it. SITE does not assume any responsibility or liability for any misrepresentations regarding a user's age. You represent and warrant you will not allow any minor to access any of our SITES.
IV. NO CHILD PORNOGRAPHY:
You understand all models appearing on this SITE are, and were at the time of all recorded images, at least 18 years of age, and our SITE contains no child pornography. If you seek any form of child pornography (including so-called "virtual" child pornography), you must exit this SITE immediately. You acknowledge all Materials on the SITE are protected by the First Amendment. We take a strong and definite stand against child pornography and only allow images and Materials protected by the First Amendment. If you identify any images, real or simulated, depicting minors engaged in sexual activity within SITE, you are required to report the images to SITE. 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. We enthusiastically cooperate with any law-enforcement agency investigating child pornography. If you suspect other outside websites are participating in unlawful activities involving minors, please report them to www.asacp.org. 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.
V. ACCESS TO, LIMITED LICENSE, AND INTERFERENCE WITH, SITE:
A. Access. To access SITE or some of the resources it has to offer, you may be asked to provide certain billing details or other information. It is a condition of your use of this SITE that all information you provide be correct, current, and complete. If SITE believes the information you provide is not correct, current, or complete, SITE has the right to refuse you access to SITE or any of its resources, and to terminate or suspend your access at any time.
C. Interference. Except where expressly permitted by law, you may not translate, reverse-engineer, decompile, disassemble, or make derivative works from our SITE's Materials. User hereby agrees not to use any automatic device or manual process to monitor or reproduce the SITE, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage SITE or any communications on it.
VI. RESTRICTIONS ON USE OF SITE:
B. Without the express prior written authorization of SITE, you may not: Duplicate SITE or any of the Materials contained therein (except as expressly provided elsewhere in this Agreement); Create derivative works based on the SITE or any of the Materials contained therein; Use SITE or any of the Materials contained therein for any public display, public performance, sale or rental; Re-distribute SITE or any of the Materials contained therein; Remove any copyright or other proprietary notices from SITE or any of the Materials contained therein; Frame or utilize any framing techniques in connection with the SITE or any of the Materials contained therein; Use any meta-tags or any other "hidden text" using SITE's name or marks; "Deep-link" to any page of SITE (including the homepage); Circumvent any encryption or other security tools used anywhere on the SITE (including the theft of user names and passwords or using another persons user name and password in order to gain access to a restricted area of the SITE); Use any data mining, bots, or similar data gathering and extraction tools on the SITE; Decompile, reverse engineer, modify or disassemble any of the software aspect of the Materials except and only to the extent permitted by applicable law; Sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time-share, use as a service bureau or otherwise assign to any third party the Materials or any of your rights to access and use the Materials as granted in Paragraph IV above; or Bookmark any page of SITE beyond the entrance screen.
C. You agree to cease any unauthorized use of SITE immediately. If SITE provides a service enabling users to share information or communicate with other users, you hereby agree not to publish, disseminate or submit any defamatory, offensive or illegal material while using the SITE or other services included on the SITE. You are solely responsible for submitting any material that violates any United States or International laws even if a claim arises after your service is terminated, and, by doing so, your actions shall constitute a material breach of this Agreement and the SITE shall terminate all your rights under this Agreement.
VII. DISCLAIMER OF WARRANTY:
A. You expressly agree use of SITE or any of the materials contained therein is at your own and sole risk.
B. SITE materials and phone services 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.
C. SITE makes no representations or warranties of SITE or any materials contained therein will be uninterrupted, timely, secure, or error free; nor does SITE make any representations or warranties as to the quality, suitability, truth, usefulness, accuracy or completeness of SITE or any of the materials contained therein.
D. You also understand and agree any material and/or data downloaded or otherwise obtained through the use of SITE or any of the materials contained therein is done at your own discretion and risk and you will be solely responsible for any damage to your computer system or loss of data resulting from the download of such material and/or data.
E. You understand SITE cannot and does not guarantee or warrant 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. SITE does not assume any responsibility or risk for your use of the internet.
F. SITE makes no warranty regarding any goods or services purchased or obtained through the SITE or any transaction entered into through the SITE and is not responsible for any use of confidential or private information by sellers or third parties.
G. SITE owner may change any of the information found at this SITE at any time without notice including the terms of service without notice. SITE owner makes no commitment to update the information found at this SITE. SITE makes no commitment to update the materials.
H. 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, arising 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. Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply to you.
VIII. ILLEGAL ACTS:
A. The provision of any services which is in violation of any laws is strictly prohibited. If we determine you or any user has provided or intends to purchase or provide any services in violation of any law, your ability to use SITE will be terminated immediately. We do hereby disclaim any liability for damages arising from any user providing any services for any purpose violating any law. You do hereby agree to defend, indemnify and hold us harmless from any liability arising should you violate any law.
B. You do also hereby agree to defend and indemnify us should any third party be harmed by your illegal actions or should we be obligated to defend any claims including, without limitation, any criminal action brought by any party not affiliated with this SITE.
C. Our SITE contains material that may be offensive to third parties. You do hereby agree to indemnify and hold us harmless from any liability arising from reviewing such material and warrant and agree to cease review of SITE should you find it offensive.
D. If you are seeking services in violation of any applicable laws whatsoever, you may not use this SITE and do hereby agree to exit it immediately. Thus, all disputes relating to the online store shall be directed to the store, and not the SITE.
IX. LIMITATION OF LIABILITY:
A. In no event shall SITE (or its 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 persons use, misuse, or inability to use SITE or any of the materials contained therein, even if SITE has 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 SITE has been advised of the possibility of such damages.
B. In no event shall SITE'S maximum total aggregate liability hereunder for direct damages exceed the total fees actually paid by you for use of a SITE or SITE for a period of no more than one (1) month from the accrual of the applicable cause or causes of action. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
XI. LINKS AND LINKING:
A. Some websites which are linked to SITE are owned and operated by third parties. Because SITE has no control over such websites and resources, you acknowledge and agree SITE is not responsible or liable for the availability of such external websites or resources, and does not screen or endorse them, and is not responsible or liable for any content, advertising, services, products, or other materials on or available from such websites or resources.
D. Links to external websites (including external websites framed by SITE) or inclusions of advertisements do not constitute an endorsement by SITE of such websites or the content, products, advertising or other materials presented on such SITE, but are for user's convenience.
E. Users access them at their own risk. SITE expressly disclaims any liability for any damages whatsoever incurred by any user in connection with the use of any website, the access to which was found through this SITE. SITE expressly disclaims any liability derived from the use and/or viewing of any links appearing on this SITE.
F. All users do hereby agree to hold SITE harmless from any and all damages and liability resulting from the use of links appearing on SITE. SITE reserves the right to terminate any link or linking program at anytime.
XII. TRADEMARK INFORMATION:
A. This SITE and the aforementioned names of the SITES are service marks and/or trademarks of the SITE. The terms "SITE NAME" and "COMPANY" are considered trademarks of the SITE. We aggressively defend our intellectual property rights.
B. Other manufacturers' product and service names referenced herein 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.
C. SITE's marks, logos, domains, and trademarks may not be used publicly except with express written permission from SITE, and may not be used in any manner likely to cause confusion among consumers, or in any manner that disparages or discredits SITE.
XIII. COPYRIGHT INFORMATION:
A. The Materials accessible from SITE, and any other World Wide Web Site owned, operated, licensed, or controlled by SITE, is the proprietary information and valuable intellectual property of SITE or the party that provided the Materials to SITE, and SITE or the party that provided the Materials to SITE retains all right, title, and interest in the Materials.
B. The Materials may not be copied, distributed, republished, modified, uploaded, posted, or transmitted in any way without the prior written consent of SITE, except you may print out a copy of the Materials solely for your personal use. In doing so, you may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the Materials.
D. Neither title nor intellectual property rights are transferred to you by access to SITE.
All Materials included on SITE, such as text, graphics, photographs, video and audio clips, music, soundtracks, button icons, streaming data, animation, images, downloadable materials, data compilations and software is the property of SITE or its content suppliers and is protected by United States and international copyright laws. The compilation of all Materials on the SITE is the exclusive property of the SITE or its content suppliers and protected by United States and international copyright laws, as well as other laws and regulations.
XIV. EXPORT CONTROL:
A. You understand and acknowledge 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.
B. You will not assist or participate in any such diversion or other violation of applicable laws and regulations.
C. You warrant you will not license or otherwise permit anyone not approved to receive controlled commodities under applicable laws and regulations and you will abide by such laws and regulations.
D. You agree 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.
XV. NO AGENCY RELATIONSHIP:
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.
A. Notice. Any notice required to be given under this Agreement may be provided by email to a functioning email address of the party to be noticed, by a general posting on the SITE, or personal delivery by commercial carrier such as FedEx or Airborne. Notices by customers to SITE shall be given by electronic messages unless otherwise specified in the Agreement.
B. 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.
C. When Notice is Effective. Notices shall be deemed effective upon delivery. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing. 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 upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided 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.
D. Refused, Unclaimed, or Undeliverable Notice. Any correctly addressed notice 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 said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
XVII. COMMUNICATIONS NOT PRIVATE:
SITE does not provide any facility for sending or receiving private or confidential electronic communications. All messages transmitted to SITE 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.
XVIII. FORCE MAJEURE:
SITE 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, including Y2K errors or omissions, for so long as such event continues to delay SITE's performance.
XIX. GENERAL PROVISIONS:
B. Rights to Injunctive Relief. Both parties acknowledge remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party's breach, and an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
C. Arbitration. The parties shall submit all disputes relating to or arising from this Agreement or the relationship created by or subject to this agreement, whether contract, tort, or both to binding arbitration in Los Angeles County, California, in accordance with California Code of Civil Procedure sections 1280 through 1294.2. Either party may enforce the award of the arbitrator under section 1285 of the Code. THE PARTIES UNDERSTAND THAT THEY ARE WAIVING THEIR RIGHTS TO A JURY TRIAL. Notwithstanding the foregoing, BREATHLESS WHISPERS retains the right to dispense with this arbitration provision with respect to any claim that includes a request for injunctive relief and proceed in any court having jurisdiction over the subject matter.
D. Assignment. 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.
E. Venue. Any dispute that arises under or relates to this Agreement, whether contract, tort, or both, shall be resolved in any court in Los Angeles County, California having jurisdiction over same, by way of an arbitration as set forth above in Los Angeles County, California, and you agree to submit yourself to the jurisdiction of any such court.
F. Choice of Law. This Agreement, and any dispute arising from the relationship between the parties to this Agreement, shall be governed by California law, excluding any laws that direct the application of another jurisdiction's laws.
L. Government Rights. The software elements of the Materials have been developed at private expense and are "commercial computer software" or "restricted computer software" within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (1) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (2) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense. You further agree not to upload to our SITE any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of this Agreement.
M. Other Jurisdictions. SITE makes no representation the SITE 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 SITE from such locations do on their own initiative and are solely responsible for compliance with all applicable local laws.