This Advertiser Agreement (the “Agreement”) is made by and between Hmedia Ads, a Czech Republic company (“Company”) and the person accepting this Agreement (“Advertiser”) as of the date set on which such acceptance occurs.
Company is engaged in the online publication of information, advertisements, and content on <hotmasseuse.com> (the “Company Network”).
Advertiser wishes to promote Advertiser’s personal services by having photographs, descriptions, text, contact information, biographical information, and other content and information relating to Advertiser or such personal services (“Content”) posted on the Company Network.
Subject to Advertiser’s compliance with the terms and conditions of this Agreement, Advertiser may submit and post Content on the Company Network.
In consideration of the mutual promises in this Agreement which constitute good and valuable consideration, the adequacy and sufficiency of which is acknowledged, the parties, each intending to be legally bound hereby, do promise and agree as follows:
1. Posting of Content. Subject to payment of all fees, Advertiser may submit and post its Content on the Company Network as follows:
1.1 Advertiser agrees that all Content posted by Advertiser has been produced in accordance with all applicable provisions of United States law, including but not limited to Title 18, U.S.C.§ 2256 and 2257 et seq. and 28 CFR Part 75 et seq., as amended, (“Section 2257”) as well as all other applicable Federal, State, local, and foreign laws and regulations.
1.2 Advertiser agrees that no Content is subject to the record keeping or labeling requirements of Section 2257. If Content is deemed by appropriate authorities to be subject to Section 2257, then Advertiser is solely responsible for the keeping of all records required by Section 2257 or requested by Company. Nothing in this paragraph shall be interpreted as allowing depictions covered by Section 2257. Advertiser alone shall publish the Content and Company shall take no part therein. Company shall only transmit, store, retrieve, host, and/or format the Content. If demanded by Company, Advertiser shall promptly provide Company with the full legal name of its Records Custodian, and a copy of any and all age records required by Section 2257, relating to any Content posted on the Company Network. In addition, if Advertiser resides in a jurisdiction other than the United States (the “Foreign Jurisdiction”), or is submitting Content from a Foreign Jurisdiction, Advertiser shall keep all records, and take all actions as may be required under the laws of such Foreign Jurisdiction, in addition to any other obligations imposed hereunder.
1.3 Advertiser bears full and sole responsibility for the production, publication, and posting of the Content. Refunds or credits may be provided by Company in Company’s sole discretion. Notwithstanding the foregoing, no refund or credit will be provided by Company to Advertiser if requested more than seven (7) days following the initial transaction. In order to request a refund, email Company at [email protected] Advertiser bears sole responsibility for ensuring that each payment by Advertiser is appropriately and adequately marked such that Company is able to apply such payment to Advertiser’s account and advertisement. Advertiser must contact Company promptly if Advertiser believes that such Advertiser’s payment has not been applied correctly. If Company is unable to apply a payment within ninety (90) days after its receipt, such payment is forfeited, becomes the property of Company, and will not be refunded. Advertiser acknowledges and agrees that Advertiser’s financial institution may impose a fee on Advertiser as a result of Advertiser paying its fees to Company using such financial institution or vendor’s credit card or other payment method. Advertiser is advised to understand such fees in advance as Advertiser is solely responsible for payment of such fees.
1.4 Advertiser is solely liable and specifically indemnifies and holds the Company harmless for any claims, debts or allegations relating to any content accessible via any link Advertiser includes as part of its Content, and for any technical malfunctions, errors, or other problems caused by such link.
1.5 Advertiser warrants and represents that it owns and retains all necessary rights to display all Content submitted to Company in accordance with this Agreement, including, without limitation, all necessary model releases, copyright licenses, assignments, publicity rights, and the like. Advertiser specifically indemnifies and holds the Company harmless for any claims, debts, or allegations relating to any Content it submits and/or posts pursuant to this Agreement.
1.6 Advertiser may be provided online access to its account. Advertiser acknowledges and agrees that such account may be used solely to enable the purposes set forth in this Agreement including any uses necessary to effectuate the intent thereof. Advertiser will safeguard its password and other log-in information in accordance with industry standards. Advertiser remains solely responsible and liable for the Content in such account regardless of any assistance that Company may provide Advertiser with respect to such account (e.g., loading or transferring Content into the account) as permitted under this Agreement.
2. Grant of License Rights.
2.1 Advertiser hereby grants Company a non-exclusive royalty-free license to use, display, copy, publish, post, exhibit, broadcast, transmit, communicate, perform, distribute, and disseminate on the Company Network any Content submitted by Advertiser to Company. Advertiser also hereby grants Company the right to make changes, including but not limited to deletions, to the Content in order for such Content to comply with all applicable laws, rules, and regulations (collectively, “Laws”) and Company policies and procedures, and to deter third party intellectual property (e.g., copyright) infringement. Advertiser also understands and hereby consents and agrees that Company may enable Content viewers to post comments, reviews, and the like (collectively, “Viewer Comments”) about such Advertiser. Advertiser expressly releases the Company from any and all liability arising in connection with the Viewer Comments or Company’s use of the Content, including, without limitation, liability arising from any blurring, distortion, alteration, watermarking, or optical illusion that may occur.
2.2 Company shall have no obligation to enforce Advertiser’s copyrights or other intellectual property rights associated with the Content submitted and/or posted. Company retains the right to enforce its own copyrights and other intellectual property rights associated with the Company Network. Advertiser will reasonably cooperate with Company and its counsel in respect of any suspected infringement when reasonably requested by Company.
2.3 The duration of the license rights granted hereunder by Advertiser to Company shall be for an unlimited period, except that said license rights may be terminated, at any time, by Advertiser upon ten (10) days’ written notification of termination by Advertiser. Within a reasonable time after effective termination of license rights by Advertiser, Company shall remove any Content from the Company Network. Company shall not be required to return any Content to Advertiser that Advertiser has submitted to Company and Company will be permitted to retain copies of any such Advertiser submitted materials for record keeping purposes.
2.5 All license rights granted to Company hereunder shall be fully assignable, transferable, and sublicenseable by Company.
2.6 This Agreement does not constitute a license for Advertiser to use Company’s trade names, service marks, or any other trade insignia owned or licensed by Company, whether as a URL, page locator, or otherwise.
3. Representations, Warranties, Covenants, and Indemnity by Advertiser. Advertiser hereby represents, warrants, and covenants to Company as follows:
3.1 That Advertiser has full right and authority to grant to Company any rights, including copyrights, necessary to permit the posting of the Content on the Company Network.
3.2 That Advertiser has made no other agreements that might interfere with the license that Advertiser has granted to Company hereunder.
3.3 That the Content has not been copied from any third party’s work, the images contained in the Content are neither fake nor “stock” photography, and that any photograph of a person depicted in the Content is a true and accurate representation.
3.4 That all persons depicted in the Content were adults over the age of eighteen (18) years of age (or older, if the age of adult status is greater than 18 in the jurisdiction where the persons were photographed), at the time that such persons were photographed.
3.5 That there are no depictions or portrayals of any performer, model or other person in any Content submitted by Advertiser that, in any manner, directly or indirectly communicates, suggests, or implies that any such person is a person under the age of eighteen (18) years or is otherwise a minor. Any violations of this policy may be reported to law enforcement as required by applicable Law.
3.6 That any personal identification and/or age verification documentation of the persons depicted in the Content that Advertiser has presented to Company is valid, authentic and real; that the information contained therein is true and accurate; and that this documentation was issued by the authority of an appropriate and valid government agency of the person whose name appears on the documentation. Advertiser has the duty to maintain such documents and provide them to any law enforcement authority, or in response to subpoena, or other legal process or obligation.
3.7 That Advertiser maintains authentic documentation of the persons depicted in the Content that Advertiser has presented to Company demonstrating that such persons were adults over the age of eighteen (18) years of age (or older, if the age of adult status is greater than 18 in the jurisdiction where the persons were photographed) when the Content depicting such persons was created.
3.8 That no claim has been made against Advertiser in relation to the Content or otherwise.
3.9 That all charges for the Content including all license fees, service charges, and the like, if any, have been fully paid.
3.10 That the Content: (a) is not illegal or contrary to Law; (b) does not promote or link to illegal activities; (c) does not promote or link to violence contrary to Law; (d) is not harassing, defamatory, hateful, abusive, libelous, or obscene; (e) does not link to websites that contain content that is illegal, defamatory, hateful, abusive, libelous, or obscene; (f) does not involve depictions of actual or simulated sexual activity; (g) does not display the genitals or pubic area; (h) is exempt from Section 2257; and (i) has not at any time been the subject of any prosecution, investigation, or civil action by any party or governmental agency. Company reserves the right, but undertakes no obligation, to delete, remove, or refuse to publish any Content that it believes to be illegal, obscene, offensive, or in violation of this Agreement or its policies and procedures. Advertiser waives any and all claims relating to such removal.
3.11 That nothing in the Content constitutes or suggests an offer to engage in unlawful conduct or behavior, a solicitation or meeting to engage in unlawful conduct or behavior, or a communication relating to unlawful conduct or behavior of any kind, in all cases, with respect to all applicable Laws. Such Content is strictly prohibited and posting same will result in termination of Advertiser’s account with Company.
3.12 That if Advertiser is conducting a business described in the Content, that the business complies with all Laws such as in the United States and any country, state, county, and municipality in which it operates, and that Advertiser has obtained all necessary licenses, permits, and authorizations to engage in such business from all applicable agencies and authorities.
3.14 That Advertiser has read, understands, agrees to, and shall fully abide by Company’s then current policies, statements, and other operational procedures as may be published from time to time.
3.15 That Advertiser shall defend, indemnify and hold harmless the Company from and against any action, suit, claim, judgments, penalties, losses, damages, costs, charges, including reasonable attorney's fees, and other losses whatsoever which may be obtained or imposed by reason of the breach of any representation, warranty, covenant, or agreement or a misrepresentation made by Advertiser hereunder or any claim that any of the Content submitted by Advertiser to Company, or posted by Advertiser, infringes any intellectual property rights or other rights of any third party on account of the use of the Content by Company.
4. Limitation of Liability for Submitted Content and Traffic.
4.1 Advertiser agrees that the Company shall not be responsible or liable in any way or to any degree for the loss or damage to any Content supplied or submitted by Advertiser to Company. Advertiser expressly acknowledges that Advertiser is only supplying copies of the Content to Company.
4.2 Advertiser agrees that the Company shall not be liable for the acts or omissions of any users that contact Advertiser via the Company Network (“Traffic”). Such Traffic comes AS-IS without any warranties of any kind whether express or implied, including, without limitation, warranties of merchantability, fitness for a particular purpose, or quality. Advertiser is responsible for ensuring that such Traffic agrees to Advertiser’s terms and conditions and if such Traffic violates any such terms and conditions, Advertiser agrees not to hold the Company liable or responsible. Advertiser agrees that Company may publish Advertiser’s personal contact information to individuals who merely browse and have no other relationship to the Network or to Company and that Advertiser bears all risk and responsibility for any use of such information and Content by any third party.
5. Disclaimer of Warranties/Assumption of Risk; Limitation of Liabilities.
5.1 DISCLAIMER OF WARRANTIES/ASSUMPTION OF THE RISK. ADVERTISER EXPRESSLY AGREES THAT ITS USE OF THE SERVICES IS AT ADVERTISER’S SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PROVIDED BY LAW. THE COMPANY MAKES NO WARRANTY THAT THE COMPANY NETWORK WILL MEET ADVERTISER’S REQUIREMENTS, OR THAT ACCESS TO THE COMPANY NETWORK WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. ADVERTISER UNDERSTANDS AND AGREES THAT ANY USE IT MAKES OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE COMPANY NETWORK IS AT ADVERTISER’S OWN DISCRETION AND RISK, AND THAT ADVERTISER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
5.2 LIMITATION OF LIABILITIES. ADVERTISER UNDERSTANDS AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER TO ADVERTISER OR TO ANY PERSON OR ENTITY RELATED TO, BASED UPON, OR ARISING OUT OF THIS AGREEMENT, THE COMPANY NETWORK, OR THE USE OF SOFTWARE, HARDWARE, OR TELECOMMUNICATION FACILITIES BY COMPANY IN PROVIDING SERVICES TO ADVERTISER, EVEN IF COMPANY HAS BEEN ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT IN THE AGGREGATE SHALL BE LIMITED IN THE AGGREGATE TO A TOTAL OF NO MORE THAN TEN DOLLARS ($10.00 USD). BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY.
6. Company Functioning as Online Service Provider.
Pursuant to the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1), and court decisions interpreting the scope of the CDA, Advertiser acknowledges and understands that Company operates as the provider of an Interactive Computer Service. Nothing contained in this Agreement is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act, and no third parties are intended to benefit from this Agreement between Advertiser and Company.
7. Miscellaneous Provisions.
7.1 Except for credit card information, all Content and other information provided by Advertiser to Company is deemed to be not confidential. Notwithstanding anything to the contrary in this Agreement, Company may, in its sole discretion, respond to reasonable requests for Advertiser information, whether formal or informal. Company shall have no obligation to resist or oppose such requests, or notify Advertiser of such requests, before providing any responsive information.
7.2 Advertiser agrees that it has fully read and understands this Agreement and has had the opportunity to seek legal counsel. This Agreement contains the entire agreement between Advertiser and Company regarding the subject matter hereof. This Agreement supersedes all prior written and oral understandings, writings, and representations and may only be amended upon notice by Company. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors, and assigns. This Agreement may not be transferred or assigned by Advertiser.
7.3 Advertiser agrees that in case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision(s) had never been included.
7.4 Advertiser agrees that for purposes of construction, this Agreement shall be deemed to have been drafted by both Advertiser and Company. Any and all ambiguities and/or inconsistencies shall not be construed in favor of or against either party hereto.
7.5 Advertiser agrees that in any legal action arising out of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs, including attorney’s fees on appeal.
7.6 The parties agree that this Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia and the United States as applied to agreements between Virginia state residents entered into and to be performed within Virginia, except as governed by Federal or international law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct or informal negotiations, then as the parties sole method of resolving such dispute, except as otherwise provided herein, either party may submit the issue to binding arbitration in accordance with the then-existing Streamlined Arbitration Rules and Procedures of JAMS. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state, or local law, statute, or regulation, excepting only claims for which injunctive relief is properly sought which must be in a court of competent jurisdiction located in Virginia.
The arbitration shall be conducted in Richmond, Virginia, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce disputes. The arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this Agreement; and shall be bound by governing and applicable law. The arbitrator must be a member in good standing of a state bar and have the ability to sign an oath of neutrality. The arbitrator shall render a written opinion setting forth all material facts, as well as the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. The decision or award of the arbitrator shall be final and binding upon the parties. Any arbitral award may be entered as a judgment or order in any court of competent jurisdiction. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
7.7 No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
7.8 Other than Advertiser’s obligation to pay fees when due, neither party will be held 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 as required by this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence, including, without limitation, acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms, or other natural disasters; strikes, or shortages in transportation, facilities, fuel, energy, labor, or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, net congestion, or any failure of a computer, server, or software. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
7.9 The relationship between Company and Advertiser under this Agreement is that of independent contractors and neither shall be, nor represent themselves to be, a partner, franchiser, franchisee, broker, employee, servant, agent, or representative of the other for any purpose whatsoever. No party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, another party or to bind another in any manner or thing whatsoever beyond the obligations created by this Agreement.
7.10 Either party shall be entitled to terminate this Agreement for cause, based on breach of this Agreement, immediately upon written notice to the other party. Either party may terminate this Agreement without cause, upon ten (10) days notice to the other.
7.11 All notices (e.g., under Section 2.4 or Section 7.10) to Company hereunder must be sent to 8033 W Sunset Blvd., Los Angeles, California 90046.
7.12 Sections 1.1, 1.2, 1.4, 1.5, 2.2, 2.3, and Sections 3 through 7, and all Advertiser’s representations, warranties, and indemnification obligations shall survive termination or expiration of this Agreement for any reason.
7.13 This Agreement is intended to be governed by the Electronic Signatures Act (E-SIGN Act). By submitting the acceptance form provided by Company, Advertiser thereby affixes his or her electronic signature to this Agreement, and thereby manifests assent to all terms contained herein.
Notwithstanding anything to the contrary in this Agreement, Company reserves the right in its sole discretion to request ID’s, request photos for verification purposes, verify the age of the advertisers, verify the age of the advertisers featured in any photos at the time the photos were taken, reject Content, change pricing and/or the pricing model, and/or change advertising categories and policies with respect to such categories. To the extent Advertiser does not agree with changes to the pricing or pricing model or service options, Advertiser may terminate this Agreement and not place any future advertisements.
/s/ Hmedia Ads