Legal Notice: Your agreement to the Terms and Conditions of this membership agreement is required for you to become a member of this website. If you do not agree to these Terms and Conditions, you will not be accepted as a member and you will not be permitted to access or view the content in the member only portion of the website.
Please read all of the provisions of this membership agreement carefully. Your acceptance of these Terms and Conditions by clicking the ‘Enter’ button at the end of these Terms and Conditions will constitute your acknowledgement that these Terms and Conditions constitute a binding and enforceable agreement between you and the website.
Parties to this Agreement and Consideration.
The parties to this Membership Agreement (the “Agreement”) for WWW.DIVERXITY.COM (the “Website”) are You, the Member, and Diverxity, Inc., a Delaware Corporation (the "Company"). As used in this Agreement, the terms "we,” and "us" are used interchangeably to refer to the Company and the Website; the term "You" and "Your" is used to refer to You, the Member.
1.1 Subject to Your acceptance of the Terms and Conditions set forth in this Agreement (as evidenced by your submission of an application for Membership and/or the payment of any and all required Membership fees), the Company agrees to provide to You all the privileges of Membership including access to the Members-only areas of the Website which are available to a Member in good standing.
1.2 The extent of Your access rights to the contents of the Website will be determined by the Membership plan that You purchase.
1.3 You agree that this Agreement is subject to change by the Company at any time and changes shall become effective upon notice to Members by e-mail, posting at or via hyperlink to the Website, or by mail. You may not alter, delete, add or change or edit any of these terms and conditions, and any such attempted alteration shall be void and of no effect.
1.4 You agree any action on Your part to bookmark to a page on this Website whereby the Warning Page, and/or the Terms and Conditions of Members Page is bypassed shall constitute an implicit acceptance by You of all the Terms and Conditions set forth herein as well as an explicit acknowledgement by You of the fact that You are an adult and at least 18 years of age or of the age of majority under the laws of Your state, province or country.
2. Sexually Explicit Material
All materials, including messages, and other communications, contained at the website are intended for distribution exclusively to consenting adults in locations where the materials, messages, and other communications contained at the website do not violate any community standards or any federal, state or local law or regulation of the United States or any other country. No persons under the age of eighteen (18) years (Twenty-one (21) in places where eighteen years is not the age of majority) may directly or indirectly view or possess any of the contents of the website or place any orders for any goods or services advertised at or in the website.
You hereby acknowledge and represent that you know and understand that the materials presented at, downloadable from, and/or able to be purchased from the website include explicit pictorial, video, audio, and/or textual depictions of sexual activities; that you are familiar with materials of this kind; that you are not offended by such materials; and that by agreeing to these Terms and Conditions, you are warranting to the company that you are intentionally and knowingly seeking access to such explicit sexual materials for your own personal enjoyment.
3. Age of Majority
No persons under the age of eighteen (18) years (twenty-one (21) in jurisdictions where eighteen (18) years is not the age of majority) may directly or indirectly view or possess any of the material or place any orders for any goods or services advertised at, in or through the website.
3.1 You hereby further affirm and warrant that you are currently over the age of eighteen (18) years (twenty-one (21) in place where eighteen (18) years is not the age of majority) and are capable of lawfully entering into and executing the Terms and of this agreement.
4. GRANT OF LIMITED LICENSE WITH RESERVATIONS.
In consideration of the payment of Membership fees, together with certain representations and agreements made by You under the terms and conditions of this Agreement, and subject to the terms and conditions set forth in this Agreement, the Company hereby grants You a limited, nonexclusive and nontransferable license to use the materials contained in, or made available through this Website (hereafter “Materials”) solely for Your private, personal non-commercial use, as provided by the Company during the period in which You are a Member in good standing.
4.1 You acknowledge and agree that all Materials contained at the Website are proprietary and constitute valuable intellectual property owned by the Company or others who have licensed use of such Materials to the Company. You acknowledge and agree that as such You may access, view, download, receive and otherwise use the Materials available at the Website only as specifically authorized by the Company and in accordance with the terms and conditions of Your Membership, only on one computer at a time and, if downloadable copies of the Materials are made available to You by the Website, You may make only a single copy of such Materials for Your own personal noncommercial use and enjoyment. You further acknowledge that the Company specifically prohibits you from doing any of the following acts, and you agree not to do any of these prohibited acts:
(a) permitting other individuals to directly or indirectly use the Materials;
(b) modifying, translating, reverse engineering, decompiling, disassembling the Materials (except to the extent applicable laws specifically prohibit such restriction);
(c) making copies or creating derivative works based on the Materials, except as provided herein;
(d) renting, leasing, or transferring any rights in the Materials;
(e) removing any proprietary notices or labels on the Materials; and,
(f) making any other use of the Materials not expressly permitted herein.
4.2 You further represent and warrant to the Company that your agreement to these terms and conditions constitutes an agreement that You shall not access, or attempt to access, any Materials available at the Website in a manner not expressly authorized by the Company. You agree and warrant that You shall at no time access, view, download, receive or otherwise use, or cause or enable others to access, view, download, receive or otherwise use Materials, directly or indirectly in places which the Company does not authorize such access, viewing, downloading, receipt or other use.
4.3 You hereby acknowledge that you understand that the Company (and all persons affiliated therewith) does not authorize the accessing, viewing, downloading, duplication, receiving, transmission, broadcasting or other use of the Materials contained on the Website to or by any person, INCLUDING YOU, who is located in any of the areas designated as PROHIBITED AREAS (as set forth in Section 5 below).
4.4 You further acknowledge that you understand and agree that any and all unauthorized access, viewing, downloading, receipt, duplication or other use of Materials from the Website, in which You are directly or indirectly involved, including, but not limited to accessing, viewing, downloading, receiving or other use of Materials in PROHIBITED AREAS in any manner shall constitute intentional infringement(s) of the Company's and potentially others' intellectual property rights and other rights in such Materials and shall further constitute a violation of Company's trademark and other rights, including, but not limited to, rights of privacy.
5. PROHIBITED AREAS.
All of the following areas constitute PROHIBITED AREAS from which no part of the Website may be accessed, viewed, downloaded or otherwise received:
5.1 All parts of the following countries: Afghanistan, Germany, Kuwait, Iran, Iraq, Japan, Jordan, Libya, Pakistan, The Peoples’ Republic of China, Singapore, Saudi Arabia, Syria, The United Arab Emirates; and
5.2 All parts of every other geophysical place corresponding to a political entity or part thereof in which the access, viewing, downloading, dissemination of, or other use of the materials contained in the Website would constitute a violation of any law, regulation, rule or custom.
6. INDEMNIFICATION FOR UNAUTHORIZED USE OF PROPRIETARY MATERIALS.
You agree to be personally liable and fully indemnify the Company, its employees, agents, attorneys, and its successors and assigns for any and all damages directly, indirectly and/or consequentially resulting from any attempted or actual unauthorized downloading or other duplication of Materials from the Website by You alone, or with, or under the authority of, any other person(s), including, without limitation, any governmental agency(ies), wherein such damages include, without limitation, all direct and consequential damages directly or indirectly resulting from unauthorized downloading or other duplication of Materials from the Website, including attorney’s fees.
7. MEMBERSHIPS; FEES; CANCELLATION.
7.1 Membership fees to Website are subject to change at any time at the sole and absolute discretion of Company. The official standard Membership rates for the Website shall be set forth at the respective “sign-up” pages of the Website.
7.2 TO CANCEL YOUR MEMBERSHIP YOU MUST NOTIFY THE COMPANY OF YOUR CANCELLATION BY ACCESSING YOUR ACCOUNT INFORMATION AND FOLLOWING THE PROCEDURE FOR CANCELLATION SET FORTH ON THE WEBSITE.
7.3 All cancellations received by the Company will be effective upon receipt.
7.4 You hereby acknowledge and agree that if You cancel Your Membership, or if Your Membership is cancelled by the Company, Your username and password will be removed from the system and that You will not be entitled to receive any further benefits. You shall not be entitled to any pro-rated or partial refund of any pre-paid, but unused Membership fees.
7.5 The Company may, at any time and at its sole discretion, cancel any Membership; provided, however, that if the Company cancels any Membership for reasons other than Your violation of this Agreement, the Company shall provide a pro-rata refund for any pre-paid, but unused fees.
7.6 You hereby authorize the Company to charge Your credit card (which You hereby acknowledge was entered by You into the paid Membership sign-up page) to pay for your Membership fees to Website. You further authorize the Company to charge Your credit card for any and all purchases of products, services and entertainment available through, at, in or on, or provided by, Website. You agree to be personally liable for all charges incurred by You during or through the use of Website. Your liability for such charges shall continue after termination of Your Membership.
8. TRANSFER OF ASSIGNMENT OF MEMBERSHIP.
You agree that as a Member of the Website you shall not, under any circumstances, have the right to transfer or assign your Membership to any other person or entity, and that any attempted transfer or assignment of a Membership shall be void.
8.1. Your further agree that the Company, may at any time at its sole discretion and without prior notice to you, transfer or assign Your Membership in the Website to an affiliated or non-affiliated company.
9. PAYMENT AUTHORIZATION/NOTICE OF LOST OR STOLEN CARD/ FRAUDULENT USE OF CARD.
Payment for the Membership services provided to You at, and/or through Website may be made by automatic credit card debit and You hereby authorize Company and its agents to transact such payments on Your behalf.
9.1 Unless and until you notify Company that you wish to cancel or terminate your Membership to the Website, You hereby authorize Company or its designated agent or assignee to charge Your credit card (or other approved facility) for any and all purchases of products, services and entertainment provided to You by or though Website.
9.2 You further agree that as a Member of the Website, You must promptly inform Company of any and all the following: loss or theft of the credit card used to pay for Membership to Website or other goods or services obtained in, at or through Website; changes in the expiration date of the credit card; changes in home or billing address; apparent breaches of security regarding Your Membership, such as loss, theft, unauthorized disclosure or use of an ID or password; and all other changes pertaining to Your credit card account used to pay for services pursuant to this Agreement which may affect Company's ability to expeditiously obtain payments due to Company. You agree that You will remain liable for any unauthorized use of Website or any of its services associated with your Membership, until You have notified Company’s Customer Service by electronic mail at info@Diverxity.com.
9.3 You further acknowledge and agree that You will remain liable to the Company for any unauthorized use of the Website associated with Your Membership.
10. TERMINATION OF MEMBERSHIP.
Either Company or Member may terminate at any time, and without cause, Membership to the Website, subject to the cancellation policy and procedures set forth in this Agreement. Your liability for all charges incurred during Your Membership term shall continue after termination, for any reason, of Your Membership.
11. PASSWORD SECURITY.
Members are responsible for providing all personal computer and communications equipment necessary to gain access to the Website. Access to and use of the Website is through the use of a password. Each Member must keep his password strictly confidential and You agree that if You share Your unique login name and/or Your Password with another individual that Your access to the Website is subject to immediate termination without notice or reimbursement of any kind.
12. No warranties; limitations on company’s liability.
You hereby agree that the material, and all other services provided to you by company, are provided on an "as is" basis, without warranties of any kind, including, without limitation, the availability, accuracy, or content of materials, information, product or services, and the warranties of merchantability, fitness for a particular purpose and non-infringement, and the company expressly disclaims such warranties. The entire risk as to the quality and performance of the material, and all services provided by company, is borne exclusively by you. Should the material, or any other service provided by company, prove defective and/or cause any damage to your computer or inconvenience to you, you, and not company, assume the entire cost and all damages which may result directly and indirectly from any and all such defects. This disclaimer of warranty constitutes an essential part of the agreement. Some states do not allow exclusions of an implied warranty, so this disclaimer may not apply to you and you may have other legal rights that vary from state to state or by jurisdiction. Under no circumstances, and under no cause of action or legal theory, shall the company, its suppliers, licensees, resellers, or other members or users of the website, or their suppliers, licensees, or resellers be liable to you or any other person for any indirect, special, incidental or consequential damages of any kind whatsoever including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages resulting from any use of materials or other use of the website.
12.1 any liability of company, including, without limitation, any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, alteration of, or use of records, whether for breach of contract, tortious behavior, negligence, or under any other cause or action, shall be strictly limited to the amount of membership fee paid by, or on behalf of, the member to the company for the preceding billing period. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. Company is not liable for damages resulting from disseminating, failing to disseminate, or incorrectly or inaccurately disseminating any material, data, advertisement or other communication at or through the website.
13. NO SCREENING OF THIRD PARTY CONTENT/LIMITATION OF LIABILITY.
13.1 You acknowledge that You understand that although the Company sets certain requirements and standards for certain content available on the Website by Members, the Company does not screen or endorse the content of any advertisements or communications submitted to or posted on the Website by third-party licensees, advertisers, users of the Website or other persons, nor does the Company exercise any editorial control, prior screening or supervision over such content. Users are therefore advised to use their own judgment to evaluate all advertisements and other communications available at or through the use of the Website prior to purchasing goods and/or services described at the Website or otherwise relying on or responding to any communication or information posted on, or accessed through the use of the Website.
13.2 Links To Third-Party Sites. You might access some of the content of the Website via hyperlinks that will connect You to third parties, or to third-party websites that may provide content to the Website. Those linked websites are not under the control of Company and Company has no editorial control or supervision over selection or display of the content provided by those third parties or those third-party websites. Company is providing You links to those third-party websites only as a convenience, and the inclusion of any link on Company's Website does not imply endorsement by Company of any other website or the content of any such website. The owners and operators of all third-party websites are solely responsible and liable for the content they provide to You.
13.3 You further acknowledge that although the Company sets certain requirements and standards for certain content available on the Website by Members, You understand that the Company does not control the content of any information, messages, communication, personal data, photographs, video or audio content, or any other material posted or uploaded by users of the Website (collectively, "User Originated Content"), and that You release the Company and its agents, officers, directors and employees, from any and all liability and responsibility, directly and indirectly, in connection with the content of any information, messages, communication or other User Originated Content You may receive from other users of the Website.
13.4 Company claims immunity from liability to the fullest extent under the law and as provided under the Communications Decency Act for User Originated Content provided by third parties and members and nothing in this Agreement is intended to waive, remove, or usurp such immunity. You understand and agree that Company reserves the right, in its sole and exclusive discretion, to delete any content, messages, photos, profiles or other information posted on the Website by any user of the Website or any other person that in the sole judgment Company violates these Terms and Conditions or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Company and/or its members.
13.5 In the event you post or upload User Originated Content to the Website, You represent and warrant that: (i) You own the User Originated Content posted by You on or through the Website or otherwise have the right to grant the license set forth in this section, and (ii) the posting of Your User Originated Content on or through the Website does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any User Originated Content posted by You to or through the Website.
13.6 Content/Activity Prohibited. The following is a partial list of the kind of User Originated Content that is illegal or prohibited to post on or through the Website. The Company reserves the right to investigate and take appropriate legal action against anyone who, in the Company’s sole discretion, violates this provision, including without limitation, removing the offending communication from the Website and terminating the Membership of such violators. Prohibited User Originated Content includes, but is not limited to User Originated Content that, in the sole discretion of the Company:
is patently offensive and promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
harasses or advocates harassment of another person;
solicits personal information from anyone under 18;
promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous;
promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming";
furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
solicits passwords or personal identifying information for commercial or unlawful purposes from other users of the Website;
involves commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; or
includes a photograph of another person that you have posted without that person's consent
13.7 The following is a partial list of the kind of activity that is illegal or prohibited on the Website and through Your use of the Website. The Company reserves the right to investigate and take appropriate legal action against anyone who, in the Company’s sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:
criminal or tortious activity, including child pornography, fraud, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;
advertising to, or solicitation of, any User to buy or sell any products or services through the Website. You may not transmit any chain letters or junk email to other Users. It is also a violation of these rules to use any information obtained from the Website in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent. If You breach this Agreement and send unsolicited bulk email, instant messages or other unsolicited communications of any kind through the Website, you acknowledge that you will have caused substantial harm to the Company, but that the amount of such harm would be extremely difficult to ascertain. As a reasonable estimation of such harm, you agree to pay the Company $50 for each such unsolicited email or other unsolicited communication you send through the Website;
any automated use of the system, such as using scripts to send messages;
interfering with, disrupting, or creating an undue burden on the Website or the networks or services connected to the Website;
attempting to impersonate another Member or person;
using the account, username, or password of another Member at any time or disclosing Your password to any third party or permitting any third party to access Your account;
selling or otherwise transferring your profile;
using any information obtained from the Website in order to harass, abuse, or harm another person; or
using the Website in a manner inconsistent with any and all applicable laws and regulations.
13.8 You acknowledge and agree that You, and not the Company, shall be solely responsible and liable for all damages, liability or other consequences, foreseen or unforeseen, of all User Originated Content which You submit, publish, display, disseminate or otherwise communicate through the Website even if a claim for damages or liability should arise after termination of service.
14. CLAIMS OF COPYRIGHT INFRINGEMENT AND OTHER VIOLATIONS
If you are a copyright owner or an agent thereof and believe that any User Originated Content or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent: Daniel A. Pepper, Esq. Full Address of Designated Agent to Which Notification Should Be Sent: Pepper Law Group, LLC, 361 Route 31, Suite 1402, Flemington, NJ 08822 or via email to info <at> informationlaw.com. Any such notifications must include:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that
is allegedly infringed;
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
(iv) Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
(v) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
15. TRADEMARKS AND SERVICE MARKS.
Diverxity and the Diverxity logo are trademarks of the Company. The name of the Website (Diverxity.com), FriendTree, and “The Social Network of Lust” are service marks of Company. No use of these marks shall be permitted except through the prior written authorization and permission of Company. All rights reserved.
16. AUTHORIZATION AND PERMISSION TO SEND SEXUALLY-ORIENTED COMMERCIAL EMAILS TO YOU.
You hereby authorize and permit notices, advertisements, e-mail and other communications to be sent to You from Company or its authorized agents, assigns, representatives, advertisers and contractors by means of e-mail, including without limitation e-mails, advertisements, notices and other communications. Moreover, You agree that Your authorization and permission to Company to send You such materials and communications shall continue to be in effect unless and until You notify Company that You wish to be deleted from Company’s email list.
17. OPT-OUT AND CANCELLATION PROVISIONS. At any time, You may opt out of future e-mailings and cancel Your receipt of future e-mailing from the Company by clicking the unsubscribe link at the bottom of each e-mail.
18. NOTICES TO COMPANY OR MEMBERS.
Notices from the Website to Members may be given by means of electronic messages, by general posting on the Website. Communications from You to the Company may be made by electronic messages only. All notices to the company shall be sent by electronic mail only to info@Diverxity.com.
19. VENUE AND JURISDICTION, CHOICE OF LAW.
This Agreement shall be governed by and construed under the laws of the State of California and the United States as applied to agreements between California state residents entered into and to be performed within the State of California, except as governed by Federal law. The parties agree to the exclusive jurisdiction of the state and federal courts located in the state of California, United States of America. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
20. UNENFORCEABILITY OF PROVISIONS.
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.
21. AFFIRMATION OF AGREEMENT.
By joining this Website, You hereby acknowledge and affirm that You have read this entire Agreement and that You AGREE to all its terms and conditions by and by authorizing the use of Your credit card for payment of charges and fees for You maintaining a Membership to the Website and for any other charges which You may incur for goods or services ordered at or in association with the Website.
23. ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the Member and Company regarding Members' use of the Website, and all materials directly and indirectly related thereto. This Agreement supersedes all prior written and oral understandings, writings, and representations and may only be amended upon notice by Company.