Terms and Conditions I. PRELIMINARY PROVISIONS A. Party Definitions and Introductory Terms 1. The operative parties referred to in this Agreement are as follows: a. Us, the Publisher – Icy Melon Productions Inc., is the publisher of the following websites: • pinkdevil.com Hereinafter, when first-person pronouns are used in this Policy, (us, we, our, ours, etc.) they are referring to this entity the publisher of the applicable websites. This entity may also be referred to as “Publisher” from this point forward. Additionally, when the terms “The Sites” or “Sites” are used, these terms refer to the websites listed above.. b. You, the User -- As the user of the Sites, this User Agreement will refer to the user as “You” or through any second-person pronouns, such as “Yours,” etc. Hereinafter, the user of the Sites shall be referred to in applicable second-person pronouns. c. User vs. Member -- For the purposes of this Agreement, all Members are Users, but not all Users are Members. This Agreement applies to all Users whether they are members or not. You become a User by accessing these Sites in any way. You need not become a Member of the Sites to make this Agreement apply to You. 2. Consideration -- Consideration for Your acquiescence to all of the provisions in this Agreement has been provided to You in the form of allowing You to use Our Sites and Our Services. You agree that such Consideration is both adequate, and that it is received upon your viewing or downloading any portion of any of the Publisher’s website(s). B. What this Agreement is – This Agreement is a legal contract between You and the Publisher. You should treat it as any other legal contract by reading its provisions carefully, as they will affect Your legal rights. By accessing the Sites in any manner, You are affirmatively agreeing to be bound by all of the terms contained in this User Agreement. You may not pick and choose which terms apply to You. If You do not agree with all of the terms in this Agreement, You must cease all access and use of the Sites and any other services provided by the Publisher. C. Revisions to this User Agreement: 1. From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable 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. 2. We agree that if we change anything in this Agreement, we will change the “last modified date” at the top of this Agreement. You agree to periodically re-visit this web page, and to use the “refresh” button on Your browser 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 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. 3. Waiver – if You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights. D. Access to the Sites – You understand that all We are selling You is access to Our 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 Sites are Your sole responsibility. We are not providing any hardware nor software to You – and You need to purchase or license the necessary hardware and software to access the Sites. II. ACCESS FEES AND USER STATUS A. Access and limited license – All Users may access certain public areas of the Sites. This User Agreement covers all public and non-public areas of the Sites. 1. Subject to all of the User Agreement and recognizing that and Our Services, the Publisher grants You a limited, nonexclusive, nontransferable personal license to access and use the Sites and the Materials contained therein. Publisher provides the Materials on these Sites for the personal, non-commercial use by viewers, fans, visitors, subscribers and/or potential subscribers of said Sites. Users of these Sites are granted a single copy license to view Materials (on a single computer only). All Materials on the Sites shall be for private non-commercial use only, and all other uses are strictly prohibited. Publisher reserves the right to limit the amount of materials viewed. You agree to prevent any unauthorized copying of the Sites, or any of the Materials contained therein. Any unauthorized use of the Sites or any of the Materials contained therein terminates this limited license effective immediately. This is a license to use and access the Sites for its intended purpose and is not a transfer of title. You will not copy or redistribute any of the content appearing on these Sites. Publisher reserves the right to terminate this license at any time if You breach or violate any provision of this Agreement, in which case You will be obligated to immediately destroy any information or materials You have downloaded, printed or otherwise copied from this Sites. Violators of this limited license may be prosecuted to the fullest extent under the applicable law. B. Fees for Users and non-Members -- You agree that the Sites and its services are provided on an a-la-carte basis. Each and every time You access a non-public portion of the Sites, You agree to pay a fee of $100 per day of access, and $10 per page view. You also agree to pay $5 for each still image viewed, and You agree to pay $25 for each video clip viewed. You agree that if Your actual usage can not be determined, that You will be billed an estimated amount. You agree and stipulate that if You disagree with Our estimated bill, You shall have the burden of proof in any court proceeding (or arbitration, or other dispute resolution process) to demonstrate that our billing is sufficiently inaccurate to warrant a reduction in charges. You agree that if your bill is not reduced by the tribunal by more than 25% of the billed amount, then You will pay all of our expenses incurred in participating in the dispute, including all applicable fees and costs billed by our Attorneys. Even if your bill is so reduced, You may be required to pay our Attorney’s fees by operation of other portions of this Agreement or by operation of law. C. Fees for Members – Our Members are provided a discount on the above fees. Members are not billed per use, for as long as they remain in good standing. Members are billed per month for unlimited access. If You fail to renew your Membership, but you continue to access the Sites, You will be billed on the a-la-carte basis as provided for above. You understand that if You become a Member, we employ an automatic rebill procedure in order to provide continuity of service and to diminish the possibility of an excessive a-la-carte access bill. 1. You understand that the requirements of Membership (and the discount provided to them) are greater than simply paying the fee. It is a condition of Membership that all of the information you provide during your signup process, and in any other interaction with Us, shall be correct, current, truthful, and complete. If You provide any false, misleading, incomplete, or otherwise incorrect information to Us, Your Membership and Your Membership discounts are null and void – and You will be responsible for a-la-carte billing for all of Your access to Our services. We have the right to terminate Your Membership at any time, but You understand that any a-la-carte billing is retroactive if you are terminated for cause, including provision of any information that is not current, truthful, and complete. 3. You are responsible for any credit card charge backs, dishonored checks, and any related fees that We incur with respect to your account. If You fail to reimburse Us for any credit card chargebacks, dishonored checks, or related fees within 30 days of our initial demand for reimbursement, You agree that You will pay Us $100 in additional liquidated damages for each fee incurred. E. Billing Errors. If You believe that You have been erroneously billed, please notify Us immediately of such error. If We do not hear from You within thirty (30) days after such billing error first appears on any account statement, such fee will be deemed acceptable by You for all purposes, including resolution of inquiries made by your credit card issuer. You release Us from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to Us within thirty (30) days of its publication. F. As noted in this subsection, there is a monthly fee for access to each website in the Icy Melon Productions Inc., network of websites. pinkdevil.com, $29.95 per month III. SPECIAL CONSIDERATIONS REGARDING MINORS A. Age of Majority. In order to use the Sites or any services provided by the Publisher, you must have attained the age of majority in your jurisdiction. You represent and warrant you are at least 18 or 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. If You are not at least 18 or 21 years of age, depending on the age of majority in Your jurisdiction, you must exit the Sites immediately and may not use or access the Sites or print or download any Materials from the Sites whatsoever. 1. You were asked to verify your birth date on the Birth Date Verifier™ form as a condition of entry onto the Sites, pursuant to 28 U.S.C. §1746. Accordingly, if You provided incorrect information on the Birth Date Verifier™ page, You committed an act of perjury, this perjury was recorded, and this perjury may be used against You in any court proceeding or other tribunal of any kind. 2. We specifically disclaim any responsibility or liability for any misrepresentations regarding a User’s age. 3. You represent and warrant that You will not allow any minor access to these Sites. 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 keep Our erotic content from being displayed to your children or wards. B. WE HAVE A ZERO TOLERANCE POLICY FOR CHILD PORNOGRAPHY AND A ZERO TOLERANCE POLICY REGARDING PEDOPHILES OR ANY PEDOPHILIC ACTIVITY. 1. You understand that all depictions of all persons on these Sites and in all Materials produced or published by the Publisher are of persons over the age of 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. 2. If You seek any form of child pornography (including so-called “virtual” child pornography), you must exit these Sites 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. 3. In order to further Our zero-tolerance policy, all Users agree that You will report any images, real or simulated, that appear to depict minors on our Sites. If You see any images or other depictions that are questionable, You agree to report these images by emailing us at support@pinkdevil.com. 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. 5. 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 http://www.asacp.org. IV. IMAGES AND CONTENT A. Our Site(s) contain images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, and any other World Wide Website owned, operated, licensed, or controlled by the Publisher (collectively, “Materials”). B. 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. D. If You are seeking information regarding any illegal activities, please leave these Sites immediately. You acknowledge that you are aware of the community standards in your community, and You will only access the content on the Sites if you believe that the content on the Sites does not offend the community standards prevalent in Your community. E. You agree not to use or access the Sites if doing so would violate the laws of Your state, province, or country. V. RESTRICTIONS ON USE OF SITES: A. You agree that You will only use the Sites for purposes expressly permitted and contemplated by this User Agreement. You may not use the Sites for any other purposes without Our express prior written consent. B. Without Our express prior written authorization, You may not: 1. Duplicate any part of the Sites or the Materials contained therein (except as expressly provided elsewhere in this Agreement); 2. Create any derivative works based on the Sites or any of the Materials contained therein, and You agree and stipulate that any and all derivative works are NOT “fair use”; 3. Use the Sites 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”; 4. Re-distribute the Sites or any of the Materials contained therein, and You hereby agree and stipulate that any and all such uses are NOT “fair use”; 5. Remove any copyright or other proprietary notices from the Sites or any of the Materials contained therein; 7. Use any meta-tags or any other “hidden text” using the Sites’ name or marks, and You hereby stipulate that any use of the Sites’ name or marks, or any other marks owned by the Publisher is an infringement upon the Publisher’s trademark rights, and You stipulate to liquidated damages of $5000 per such infringement, plus You agree to pay any and all fees incurred in the recovery of this amount, including attorney’s fees and all associated costs. 8. “Deep-link” to any page of the Sites (including the homepage), or avoid agreement to the Sites’ Terms & Conditions; you may only link to the main entry page; 9. Circumvent any encryption or other security tools used anywhere on the Sites (including the theft of user names and passwords or using another person’s user name and password in order to gain access to a restricted area of the Sites); 10. Use any data mining, bots, or similar data gathering and extraction tools on the Sites; 11. Decompile, reverse engineer, modify or disassemble any of the software aspect of the Materials except and only to the extent permitted by applicable law; 12. 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 specifically by this Agreement; or 13. Bookmark any page of the Sites beyond the registration log-in screen. C. You agree to cooperate with the Publisher in causing any unauthorized use to cease immediately. At any time, if the Publisher provides a service enabling users to share information or communicate with other users, You agree not to publish, disseminate, or submit any defamatory, or illegal material while using the Sites or other services included on the Sites. 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 Sites shall terminate all of Your rights under this Agreement. D. Interference. Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from any of the Publisher’s Materials or any other Materials from Our Sites. User hereby agrees not to use any automatic device or manual process to monitor or reproduce the Sites or Materials, and will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage the Sites or any communications on it. If You do not adhere to this provision of this Agreement, You hereby stipulate to and agree to pay liquidated damages of $5000 plus any and all fees associated with recovery of these damages, including attorney’s fees and costs. E. Stipulated Liquidated Damages – 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, and 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. 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 liquidated damages of $100 per occurrence. You specifically agree to pay this $100 in liquidated damages. 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 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. A. You expressly agree that use of the Sites 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 or otherwise obtained through the use of the Sites 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 of such material and/or data. B. The Sites 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. C. Publisher makes no representations or warranties that the Sites or any materials contained therein will be uninterrupted, timely, secure, or error free; nor does Publisher make any representations or warranties as to the quality, suitability, truth, usefulness, accuracy, or completeness of the Sites or any of the materials contained therein. E. You understand that Publisher cannot and does 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. Publisher does not assume any responsibility or risk for Your use of the internet. F. Publisher makes no warranty regarding any goods or services purchased or obtained through the Sites or any transaction entered into through the Sites and is not responsible for any use of confidential or private information by sellers or third parties. G. Publisher may change any of the information found on this Sites at any time without notice including this User Agreement without notice. Sites owner makes no commitment to update the information found at these Sites. Sites make 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, 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. VII. DISCLAIMER AND INDEMNIFICATION B. You also 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. C. Our Sites contain material that may be 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 Sites should you find it offensive. D. You agree to defend, indemnify, and hold harmless the Publisher, 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 Sites or any of the Materials contained therein, or Your breach of any of this User Agreement. Publisher 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 its own expense, and choose its own legal counsel, but are not obligated to do so. VIII. LIMITATION OF LIABILITY: A. In no event shall Publisher (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 person’s use, misuse, or inability to use the Sites or any of the materials contained therein, even if Publisher 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 Publisher has been advised of the possibility of such damages. B. In no event shall Publisher’s maximum total aggregate liability hereunder for direct damages exceed the total fees actually paid by You for use of the Sites 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. IX. LINKS AND LINKING: A. Some websites which are linked to the Sites are owned and operated by third parties. Because the Publisher has no control over such websites and resources, You acknowledge and agree that Publisher 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. B. You further acknowledge and agree that Publisher 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. C. 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 these Sites’ User Agreement, Spam Policy, Webmaster Agreement, or Privacy Policy, which are incorporated into this Agreement by reference. D. Links to external websites (including external websites that are framed by the Sites) or inclusions of advertisements do not constitute an endorsement by the Publisher of such websites or the content, products, advertising, or other materials presented on such Sites, but are for user's convenience. E. All users do hereby agree to hold the Publisher harmless from any and all damages and liability that may result from the use of links that may appear on the Sites. The Publisher reserves the right to terminate any link or linking program at anytime. X. TRADEMARK INFORMATION: A. The Materials accessible from the Sites, and any other World Wide Website owned, operated, licensed, or controlled by Publisher, is the Publisher’s proprietary information and valuable intellectual property and We retain all right, title, and interest in the Materials. The Sites and its software are registered with the U.S. Copyright Office. B. The Materials may not be copied, distributed, republished, modified, uploaded, posted, or transmitted in any way without the prior written consent of Publisher, except that 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. C. Modification or use of the Content except as expressly provided in this User Agreement violates the Publisher’s intellectual property rights. D. Neither title nor intellectual property rights are transferred to You by access to the Sites. E. All Materials included on the Sites, 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 the Publisher or its content suppliers and is protected by United States and international copyright laws. The compilation of all Materials on the Sites is the exclusive property of the Publisher or its content suppliers and protected by United States and international copyright laws, as well as other laws and regulations. © CORPORATION (2007), all rights reserved. |