1. Introduction. This YNOT.com User Terms and Conditions Agreement (the “Agreement”) describes the terms and conditions governing the use of services provided by YNOT Group, LLC (“YNOT”). The provisions of this Agreement will govern Your use of Our website, and You should therefore take some time to read it carefully.
Additionally, through the use of these Terms and Conditions, We are placing legal conditions on Your use of this website (www.ynot.com, the “Website”), and making certain promises to you.
2. Party Definitions.
a. “We,” are the service provider of the Website. It should be obvious, but for the sake of legal clarity, when this Agreement uses first-person pronouns such as “Us,” “Our,” “Ours,” etc., those first-person pronouns are referring to Us as the service provider for the Website.
b. “You,” the User will be referred to in this Agreement through any second-person pronouns, such as “Yours,” etc. Second-person pronouns will also refer, when applicable, to any third party on behalf of whom You are using Our service, such as a client or employer who will benefit from Your use of Our service. Second-person pronouns will also refer, when applicable, to any third party using Our service on your behalf, such as an employee or any other agent.
3. 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 Website and Our Services. You agree that such Consideration is both adequate, and that it is received upon Your viewing or downloading any portion of Our Website.
In consideration for Your use of the Website, 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.
You may not unilaterally disregard any portion of this Agreement. However, if there is a particular portion of this Agreement that You wish to avoid, You may contact Us to negotiate a separate agreement BEFORE You use the Website. We do not guarantee that such negotiations will be successful.
Nevertheless, if You wish to discuss Your own personalized Agreement, please contact Us or have Your attorney do so.
If You do not understand all of the terms in this Website, then you should consult with a lawyer before using the Website.
4. Revisions to this Agreement. 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.
If We change anything in this Agreement, We will change the “Last Modified” date at the top of this Agreement. You agree to re-visit this webpage on a weekly basis, 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 re-review the Agreement in its entirety and that You will agree to its terms or immediately cease use of the Website.
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 Terms. We are not responsible for Your neglect of Your legal rights.
5. Language Translations. We may opt to provide You with a translation of the English language version of descriptions for this Agreement or other Website’s functionalities. In such event, You agree that the translation is provided for Your convenience only and that the English language versions of this Agreement will govern Your relationship with YNOT. If there is any contradiction between the English language version and its translation in a different language, then the English language version shall take precedence.
6. Acceptance and Affirmation. You must agree to all of the terms in this Agreement before using the Website or Our services. Your affirmative acceptance of all of the terms in this Agreement will be demonstrated by the following:
a. If You click on 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; or
b. By using any of Our services in any manner, You understand and agree that We will consider any use of Our Website as Your affirmation of Your complete and unconditional acceptance of all of the Terms in this Agreement.
7. User Registration. In order to use certain portions of the Website, You must register for a User Name and password. If You have not done so already, You may create a free account on the Registration Page. The Website is for adults only, however, and You may not register for a User Name, and may not download or view the material appearing on the site, unless You have attained the age of majority in Your home jurisdiction.
You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under Your password or account. You agree to: (a) immediately notify Us of any unauthorized use of Your password or account or any other breach of security; and (b) ensure that You exit from Your account at the end of each session. We cannot and will not be liable for any loss or damage arising from Your failure to comply with this Section.
With regard to your User Registration, You may not: (a) assign, transfer, or sell Your account; (b) provide false or inaccurate information, either when creating Your account or changing the information stored in Your account profile; (c) allow others to use Your User Registration; or (d) create more than one User Registration.
8. Our Services. We own, operate, publish, and maintain the Website, and all images, text, or other material appearing thereon either belongs to Us or We have permission to publish such material. We hereby grant to You, under the terms of this Agreement, a nonexclusive, worldwide, nontransferable, non-assignable right, license, privilege, and authority to download and view the material appearing on the Website. You hereby give Us the irrevocable, perpetual, worldwide right, license, privilege, and authority to publish any material that You may submit through the Website including, but not limited to, material provided through Our forums, information in Your user profile, messages You send to other users, or advertisements You place on the Website.
9. Digital Millennium Copyright Act. Portions of the Website are configured to receive and display content created by You and other users. You acknowledge that, with respect to content that is posted by You or other users, the Website is an online service and We are an online service provider therefor, as such terms are defined by the Digital Millennium Copyright Act (“DMCA”). Accordingly, such material resides on Our servers at the direction of the users who placed it there, and We are therefore not responsible for any infringement of copyrights that may be embodied in such content.
a. Allegations of Infringement; Agent Designation. If You believe that Your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on the Website, You must send YNOT a notice containing: (i) a physical or electronic signature of the copyright owner or person authorized to act on behalf of the copyright owner; (ii) a description of the copyrighted work or works that You claim have been infringed, including an identification of what material in such work(s) is claimed to be infringing; (iii) a description of where the material that You claim is infringing is located on the Website; (iv) information sufficient to permit YNOT to contact You, such as Your physical address, telephone number, and email address; (v) a statement that You have a good faith belief that the use of the material You identified is not authorized by the copyright owner, its agent, or the law; and (vii) a statement by You that the information in Your notice is accurate and, under penalty of perjury, that You are the copyright owner, or authorized to act on the copyright owner’s behalf.
YNOT has designated and registered with the United States Copyright Office the following agent for receipt of notices of alleged copyright infringement appearing on the Website:
Jason A. Fischer, Esq.
Randazza Legal Group
One Biscayne Tower
2 South Biscayne Boulevard, Suite 2600
Miami, Florida 33131-1815
Phone: (888) 667-1113
Fax: (305) 437-7662
b. Repeat Infringer Policy. YNOT maintains a zero-tolerance policy regarding copyright infringement. If You post materials to the Website that infringe upon another’s copyrights, Your account will be terminated upon Our discovery of such fact, and You will not be permitted to re-register. If we find that You are using the Website to facilitate infringement on another site, We will also permanently terminate Your account. To avoid the possibility that You might, after having Your account terminated, attempt to re-register using a different email address, We track and maintain a record of other identifying information, such as Internet Protocol (IP) address and payment information, where applicable. You hereby agree that, in response to legitimate allegations of infringement, We will disclose this information to any justifiably accusing party and assist such parties in every way possible to enforce their proprietary rights.
10. Representations and Warranties. By using the Website or any other of Our services, You thereby affirmatively acknowledge, represent, and warrant the truth, accuracy, and materiality of each of the following statements:
a. The Website is for adults only. Accordingly, You represent and warrant that You are at least eighteen (18) years of age, or have attained the age of majority in Your home jurisdiction, whichever is higher.
b. If You have registered for a User Name, all of the information provided in creating and maintaining Your account, is true and accurate.
c. YNOT provides access to an online service comprising information and materials created and posted by You and other users.
d. Some of the materials that are available for viewing are stored on YNOT’s servers at the direction of YNOT’s users.
e. Any material You have posted or submitted to the Website does not now and will never violate the terms set forth herein.
f. Any modification of materials posted by YNOT’s users, such as formatting for display or the addition of a watermark, is performed by an automated process. Accordingly, as the posting user is aware that such modifications shall take place automatically upon upload, the user shall be deemed the party responsible for such automatic modification and shall be considered the “author” of such automatically modified material. YNOT is not responsible for modifications that occur to material as part of its automatic posting process.
g. Any review of user-posted materials that may be performed by YNOT before making such material available to the public is cursory and only intended to identify immediately obvious violations of this Agreement. Accordingly, and despite any such gate keeping, the user posting the material shall be deemed the party at whose direction that material resides on YNOT’s servers.
h. YNOT has never, and never will, direct its users to post materials that infringe upon any right belonging to a third party. Posting material that infringe on third-party rights constitutes a direct and material violation of this Agreement and will subject the posting user’s account to suspension and/or termination, where appropriate.
i. YNOT correctly presumes that the user posting any material is the sole holder of all exclusive rights to that material, except where the posted material alone bears some obvious indication to the contrary, such as a visible proprietary marking identifying a party other than the posting user as the exclusive rights holder.
j. Where material has no obvious proprietary marking that indicates an exclusive owner, YNOT cannot be deemed to have actual knowledge that the material infringes upon any third party’s rights.
k. In providing and maintaining the Website, including its forum sections, YNOT does not derive a direct financial benefit from any particular piece of material posted by a user.
l. YNOT has no right or ability to control the activities of posting users who create and post material to the Website. In the event that a user infringes upon a third party’s rights by creating or posting material, that user is the sole responsible party for such infringement, and YNOT has no control over such activity.
m. Apart from identifying an obvious proprietary marking in posted material that indicates an exclusive owner, YNOT has no other ability to determine whether the rights appurtenant to a particular piece of posted material may belong to a party other than the posting user. As its only other means of identifying material that may infringe upon a third party’s rights, YNOT relies entirely on properly presented notifications from third parties claiming that their rights have been violated; nothing more is required by law or policy.
11. Acceptable Use. You agree and understand that Our Website permits You to use Our services in order to post content and to communicate with other Users. We are entitled to investigate and terminate Your membership if You have misused the Website, or behaved in a way which could be regarded as inappropriate, unlawful, or illegal. The following is a non-exhaustive list of the types of actions that are illegal or prohibited under this Agreement:
a. Posting material 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;
b. Posting material that might be considered to be impersonating another person or legal entity;
c. Posting material that constitutes SPAM or bulk posting of commercial advertisements for commercial interests;
d. Posting material that infringes upon any trademark, copyright, or other intellectual property rights of any party;
e. Continuing to communicate with any person who requests that you cease and desist from such communication;
f. “Stalking” or otherwise harassing any person;
g. Posting on the Website any private information such as address, phone number or any other private identifying information, about anyone other than Yourself, without first obtaining that person’s written consent;
h. Collecting any personal data about other users for impermissible uses;
i. Conducting any illegal activities at all;
j. Viewing, transmitting, trafficking in, or in any other way interacting with, providing to any other person, or receiving child pornography in any way;
k. Using Our services in order to view, transmit, traffic in, or in any other way interact with, provide to any other person, or receive obscene materials in any way;
l. Using Our services in order 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; or
m. Impersonating any person or entity.
12. Termination. YNOT reserves the right to terminate Your account in the event that We believe, in Our sole discretion, that You have breached this Agreement in any way, or if We receive a subpoena, search warrant, or other legal request or process relating to Your account. In such event, Your account will be made immediately inaccessible and all messages, photos, advertisements, and other content associated with Your profile will be inaccessible to You. You agree that We have no liability to You in the event of a termination and/or loss of data hereunder.
13. Disclaimer, Indemnification, and Limitation of Liability.
a. YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE AND EXCLUSIVE RISK. THE WEBSITE IS PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. YNOT EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. YNOT MAKES NO WARRANTY THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS, OR THAT THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES YNOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE WEBSITE WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY USE YOU MAKE OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS 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. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR CONSEQUENTIAL DAMAGES OR PUNITIVE DAMAGES. YOU AGREE THAT YNOT’S MAXIMUM LIABILITY TO YOU FOR BREACH OF THIS AGREEMENT, OR FOR ANY OTHER REASON, SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF MEMBERSHIP FEES YOU HAVE PAID US, IF ANY.
b. You hereby agree to defend, indemnify, and hold harmless YNOT along with its affiliated entities, agents, managers, employees, attorneys, contractors, agents, officers, and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs, and expenses, including, without limitation, attorneys’ fees, arising from your use of the Website or the activities conducted using your User Name and password on the Website.
c. YOU ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL YNOT, ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS, OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE WEBSITE, INCLUDING UNAUTHORIZED ACCESS TO OR ALTERATIONS TO YOUR TRANSMISSIONS OF DATA, OR THAT RESULT FROM ERRORS IN THE ADMINISTRATION OF ANY CONTEST, PROCESSING OF CONTEST SUBMISSIONS OR AWARDING OF ANY PRIZE. UNDER NO CIRCUMSTANCES WILL YNOT BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE WEBSITE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. YOU SPECIFICALLY ACKNOWLEDGE THAT YNOT SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF YNOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
a. Notice. We may provide You with notices, including those regarding changes to this Agreement, by either email or postings on the Website.
d. Legal Compliance. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Your use of the Website.
e. 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 Texas, excluding its conflict of law provisions. The sum of this Section and its subsections is that any and all disputes must be, without exception, brought to court and litigated in Houston, Texas.
(i) 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 shall be tried and/or litigated exclusively in the state and federal courts located in Houston, Texas.
(ii) The parties agree to exclusive jurisdiction in, and only in, Houston, Texas.
(iii) The parties agree to exclusive venue in, and only in, Houston, Texas.
(iv) 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.
(v) 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 proceeding brought in accordance with this paragraph or with respect to any dispute under this Agreement whatsoever.
(vi) All parties stipulate that the state and federal courts located in Houston, Texas shall have personal jurisdiction over them for the purpose of litigating any dispute, controversy, or proceeding arising out of (or related to) this Agreement and/or the relationship between the parties contemplated thereby.
(vii) 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.
(viii) 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.
f. Waiver and Severability of Terms. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties to this Agreement nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
g. Attorneys’ Fees. In the event any party to this Agreement 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, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorneys’ fees and costs incurred in connection therewith, including attorneys’ fees incurred on appeal.
h. Complaints. California Residents: The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
i. Complete Agreement. This Agreement, including any other documents that are incorporated by reference, constitutes the entire Agreement between the parties hereto with respect to Your access and use of the Website, and supersedes and replaces all prior understandings or agreements, written or oral, regarding such subject matter.
j. No Right of Survivorship and Non-Transferability. You agree that Your user account is non-transferable and any rights to Your User Name or contents within Your account terminate upon Your death. Upon receipt of a copy of a death certificate, Your account may be terminated and all contents therein permanently deleted.
k. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service, or this Agreement, must be filed within one (1) year after such claim or cause of action arose or be forever barred.
l. Surviving Sections. 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, limitations of liability, indemnity, governing law, and the general provisions.
m. Headings. The section titles in this Agreement are for convenience only and have no legal or contractual effect.
Last edited by ynotconnor; April 7th, 2011 at 02:25 PM.