Effective Date: 08 June 2019
Last Modified Date: 26 June 2020
ADVERTISER AGREEMENT
This agreement (the “Agreement”) is made by and between the operator of the network of websites listed below (hereinafter referred to as the “Company”) and the person or entity accepting this Agreement (hereinafter referred to as “Advertiser”) as of the date set on which acceptance of this Agreement occurs.
W I T N E S S E T H:
WHEREAS, Company may be or is engaged in, among other things, providing online services permitting Advertisers to submit and/or publish adult entertainer information, advertisements, and content on one or more owned or not owned, or affiliated, via contract or otherwise, websites, portals, networks, and other paper and electronic outlets including, without limitation, DatingPornstar.com (collectively, the “Company Network”);
WHEREAS, if Advertiser is an individual commercial business seeking to promote Advertiser’s own individual services, Advertiser wishes to promote and advertise such personal services by submitting photographs, descriptions, text and other content and information relating to Advertiser on one or more of the outlets on the Company Network and elsewhere, whether through the classified listings, banners, and/or links; and
WHEREAS, if Advertiser is a corporate entity, or individual commercial business seeking to promote the services of others, Advertiser wishes to establish an account with the Company for the purpose of promoting the services of third parties by submitting photographs, descriptions, text and other content and information about the adult entertainers whom Advertiser employs or represents for posting on one or more of the outlets on the Company Network and elsewhere, whether through the classified listings, banners, and/or links; and
WHEREAS, subject to Advertiser’s strict compliance with the terms and conditions of this Agreement, Advertiser may submit and post Advertiser’s supplied images and content on one or more of the outlets on the Company Network or utilize such other service as the Company may make available to Advertiser from time to time;
NOW THEREFORE, in consideration of the mutual promises and agreements hereunder contained and for 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. Acceptance and Modification of this Agreement
1.1 By becoming an Advertiser for this Site, Advertiser agrees to all terms and conditions within this Agreement. Advertiser may not pick and choose those terms which apply to Advertiser. If Advertiser does not agree with all of the provisions of this Agreement, Advertiser must cease all access to, and use of, the Site and any other services provided by the Company. Nothing in this Agreement is intended to create any enforcement rights by third parties.
1.2 Nobody is authorized to access the Website or use the Services unless they have accepted this Agreement. Such acceptance does not need to be through a physical signature, since electronic acceptance of this Agreement is permitted by law. Advertiser manifests acceptance of this contractual Agreement by taking any act demonstrating assent thereto. Examples of such acts include typing Advertiser’s name in a signature field, checking a box or clicking a button containing the words “I agree”, “continue”, or some similar syntax. Advertiser understands that this has the same legal effect as Advertiser’s placing a physical signature on any other legal contract. If Advertiser fails to do take such act, Advertiser is still bound by the terms of this Agreement by virtue of Advertiser’s accessing any portion of the Company’s Website or services. If Advertiser clicks any link, button, or other device provided to Advertiser in any part of Company’s Website’s interface, then Advertiser has legally agreed to all of the terms and conditions contained herein. Additionally, by using the Website or services in any manner, including uploading Content (as defined below) to the Website, Advertiser understands and agrees that Company will consider such use as Advertiser’s affirmation of Advertiser’s complete and unconditional acceptance to all of the terms in this Agreement.
1.3 From time to time, Company may revise this Agreement. Company reserves the right to do so, and Advertiser agrees that Company has this right. Advertiser agrees that all modifications or changes to this Agreement are in force and enforceable immediately upon posting and will apply to all content and information submitted to and/or retained by Company. Any 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. As a specific exception to the foregoing, no update or change to this Agreement will affect the financial obligations owed by the Advertiser to the Company, which will exclusively be governed under the version of this Agreement published when the Advertiser posted Advertiser’s Content. Company agrees that if it changes anything in this Agreement, Company will change the “last modified date” at the top of this Agreement so that it is immediately obvious that Company has updated the Agreement. Advertiser agrees to periodically re-visit this web page, and to use the “refresh” button on Advertiser’s browser when doing so. Advertiser agrees to note the date of the last revision to this Agreement. If the “last modified date” remains unchanged from the last time Advertiser reviewed this Agreement, then Advertiser may presume that nothing in the Agreement has been changed since the last time Advertiser read it. If the “last modified date” has changed, then Advertiser can be certain that something in the Agreement has been changed, and that Advertiser needs to re-review it in order to determine how Advertiser’s rights and responsibilities may have been affected by the revisions. In the event any court deems acceptance of a modification to this Agreement to be ineffective for any reason, the parties intend for the most recent, previously-accepted version of the Agreement to be enforced.
Waiver – By failing to periodically review this Agreement to determine if any of the terms have changed, Advertiser assumes all responsibility for such failure and Advertiser agrees such failure amounts to Advertiser’s affirmative waiver of Advertiser’s right to review the amended terms. Company is not responsible for Advertiser’s neglect of Advertiser’s legal rights.
2. Content, Payments, Refunds, and Accounts
2.1 Posting of Content. Subject to payment of all fees and Company’s approval of Advertiser’s account registration request, Advertiser may submit advertising content for posting on the Company Network. “Content” is defined as any of Advertiser’s content, materials, information, visual images, photos, video, graphics, text material, website and social media links, stage name(s), character, persona, biographical data, and contact information). Publication of Content is subject to Advertiser’s strict compliance with Company’s publishing guidelines, photo review policies, and compliance with this Agreement, including but not limited to the following:
2.2 If the Advertiser is subject to federal and state law in the United States, Advertiser warrants and agrees that all Content submitted and/or posted by Advertiser shall have been produced in accordance with all applicable provisions of United States law, including but not limited to Title 18, U.S.C. §§2256, 2257 & 2258A et seq. and 28 CFR Part 75 et seq., as amended, (“Section 2257”) as well as all other applicable federal, state, local, provincial, and foreign laws or regulations.
2.3 Advertiser further warrants and agrees that all Content submitted and/or posted by Advertiser does not include subject matter which would trigger Section 2257 obligations. If such content triggers Section 2257, then Advertiser is solely responsible for the keeping of all records required by Section 2257 or as requested by Company. If demanded by Company, Advertiser shall promptly provide Company with the full legal name of its Records Custodian, the address where all Section 2257 records are maintained, and a copy of any and all age records and other information required by Section 2257, relating to content posted on one or more outlets 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 also shall keep all records as may be required under the laws of such Foreign Jurisdiction, in addition to any other obligations imposed hereunder.
2.4 Consideration: Consideration for Advertiser’s acquiescence to all of the provisions in this Agreement has been provided to Advertiser in the form of allowing Advertiser to use Company’s Network, which includes allowing Advertiser to establish an Account on the Website, submit advertising Content, and enjoy the associated promotional benefits. Advertiser acknowledges the existence and sufficiency of consideration upon your acceptance of this Agreement.
2.5 Advertising Costs: To promote services on the Website, the Advertiser must select one or more of the Company’s advertising offerings. The rates associated with the different offerings, once selected, are prominently displayed at the time of purchase. Such rates are subject to change within Company’s discretion at any time. The costs associated with placement of ads and other services are conspicuously described on the Website, and incorporated herein by reference.
2.6 Advertiser bears full and sole responsibility for the production, publication, and posting of the Content. Advertiser shall notify Company within one (1) business day of first posting of any corrections, changes or deletions necessary thereto. No refunds or credits (which include credits, adjustments, coupons and the like) are provided by Company and none should be expected by Advertiser.
(a) However, to the extent Company does provide a refund, Company, at its sole discretion, will either (i) issue a credit back to any credit or debit card used to pay for the advertising service; or (ii) issue a refund check which will be mailed to the current address of record in as reflected in Advertiser’s account. Such refund check must be presented for payment to a financial institution within ninety (90) days of issuance, or such check (and the refund amount) will be cancelled and forfeited and no replacement check will be provided. To the extent Company does provide or post a credit to Advertiser’s account or has provided a credit in the past, in each case, for any reason whatsoever, such credit must be used no later than 1) one hundred eighty (180) days of being posted to the Advertiser’s account; 2) prior to termination of this Agreement; or one hundred eighty (180) days from the Effective Date of this Agreement, whichever occurs last. Otherwise, the credit will be cancelled and forfeited and no replacement will be provided. Any overpayment will be posted as a credit and handled in accordance with this paragraph.
(b) Advertiser bears full and sole responsibility for ensuring that each payment 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.
(c) If the parties agree that Advertiser will pay for advertisements based on a variable fee model such as impressions, clicks, exposure, conversions, and the like (e.g., banner ads), Advertiser must pay Company a non-refundable retainer fee in advance. At the end of a reporting period, as determined by Company in its sole discretion, Company will submit to Advertiser a report documenting the calculation of the advertising fee and such fee will be deducted from the retainer amount. Company’s records, files, statistics, and reports will be the only basis for the calculation of the advertising fee, and are not subject to audit. Any questions concerning such calculation must be submitted within five (5) business days of Company’s submitting the report to Advertiser or such fee calculation will be deemed final. The parties acknowledge and agree that a variable fee model as described above is a common method for calculating an advertising fee between independent internet businesses and does not mean and does not imply that Company owns, controls, or has any influence over Advertiser’s business. Advertiser has sole and complete ownership and control over its business.
(d) Advertiser acknowledges and agrees that Advertiser’s financial institution or vendor may impose a fee on Advertiser as a result of Advertiser paying its advertising or service fees to Company using such financial institution or vendor’s credit/debit card or other payment method. Advertiser understands that domestic and/or international merchant processing may be used by Company and as such, additional international fees may be added. Advertiser is advised to understand such fees in advance as Advertiser is solely responsible for payment of such fees, and consider such fees when choosing a payment method and specific credit/debit card as fees do vary.
2.7 In addition to being solely responsible and liable for all Content submitted to the Company Network, Advertiser is also solely liable for any content accessible via any link Advertiser includes as part of Advertiser’s Content, and for any technical malfunctions, errors, or other problems caused by such link. Advertiser specifically indemnifies and holds the Company (which means the Company, its owners, officers and directors, successors, assigns, attorneys, affiliates, agents and licensees, and, in all cases, their respective owners, officers and directors, successors, assigns, affiliates, agents, and licensees) harmless for any claims, debts or allegations relating to any site linked to one or more outlets on the Company Network by the Advertiser.
2.8 Advertiser is solely responsible for any Content submitted to Company, by Advertiser or on Advertiser’s behalf by third parties (such as photographers or other delegates of Advertiser) and all provisions of this Agreement shall apply to such Content. Advertiser warrants and represents that it owns and retains, or has obtained from the Content owner, all necessary rights to display all Content submitted to Company in accordance with this Agreement, including, without limitation, all necessary model releases, copyright licenses, trademark 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.
2.9 Prior to submitting any Content for publication, Advertiser must establish an advertising account (“Account”) with the Company, which requires specific registration, identification, and payment information, in the discretion of the Company. Advertiser warrants and represents that all information provided in connection with registration for an Account is true and correct. Advertiser is permitted to create only one (1) Account, and transfer or sale of the same is prohibited. Registration for an Account may be denied, suspended, or revoked by the Company at any time, in the Company’s discretion, if the Advertiser fails to meet or comply with the Company’s publishing guidelines, quality assurance evaluation, anti-fraud policies, or customer authentication efforts. Advertisers who have been rejected, suspended, denied, or banned from establishing an Account shall not attempt to register another Account using the same or different registration information. Any such circumvention efforts shall be deemed to be fraudulent and unlawful.
2.10 Advertiser may not create an Account if accessing the Website or its services would violate the laws of Advertiser’s jurisdiction.
2.11 Advertiser shall be responsible for all uses and/or activities conducted through Advertiser’s Account, whether or not authorized by Advertiser. Advertiser agrees to immediately notify the Company of any unauthorized access or use of Advertiser’s Account.
2.12 Company disclaims any and all liability resulting from fraudulent access and/or use of the Website via Advertiser’s Account.
2.13 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 Account password and other log-in information in accordance with industry standards, and shall not share such information with any third party. 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.
2.14 Privacy/Data Collection.
(a) Advertiser acknowledges and agrees that Company uses cookies, browser capabilities, web beacons, features and functionalities, tracking services, and other technology to collect information about Advertiser in order to enhance Advertiser’s experience on the sites. The collection of this data is intended to improve site navigation; maintain tracking of preferences; provide general internal and user web analytics reports; conduct research; and assist in identifying possible fraudulent activities. The information collected includes, but is not limited to, Advertiser’s IP address, device, transaction data, browser information, geographic location, the unaltered images/photos of the blurred images/photos that Advertiser may submit, and other session data (collectively, “Passive Data”).
(b) Advertiser acknowledges and agrees that, in order for the Company to conduct business, Advertiser will have to transfer personal information which will include account and advertiser information, payment information such as credit or debit card data, identification data, personal identification documents such as government identification cards and other verification documents, authentication or other photographs, and/or other age verification documentation and materials of the account owner or the persons depicted in the Content. In addition, Advertiser acknowledges and agrees that Company may record and store all interactions with Advertiser (eg., phone, live chat, email, internet, etc.). All of the above-referenced categories of information, data, and materials are referred to herein as “Active Data”.
(c) Advertiser fully and knowingly expressly consents to the Company’s receipt and handling of the Passive Data and the Active Data (together, “Business Data”) notwithstanding when or under what agreement it was provided to the Company. The Company agrees that it will process the Business Data using commercially reasonable standards. Further, Company has Advertiser’s express permission (without any additional consent) to use and maintain the Business Data however it sees fit, and provide any or all of it to any law enforcement authority, or in response to subpoena or other administrative, regulatory, or legal process or obligation including, without limitation, to a third party to protect Company, Advertiser, or general public and/or to provide it to a third party and all predecessors, successors and assigns in the event Company, its assets, or all or substantially all of its assets, are acquired in a sale, merger or other reorganization of the company, or in the event of bankruptcy, insolvency, or receivership. If the Company subcontracts, sells or transfer its obligations under this agreement to a non-governmental entity, it shall do so only if such entity agrees to use commercially reasonable standards to safeguard such Business Data. Advertiser understands that if any (governmental or not) subcontractor, buyer or transferee fails to fulfil its data protection obligations hereunder the Company will not be responsible or liable in any way to the Advertiser for the performance of the subcontractor.
(d) Advertiser expressly agrees that Company may search, compare, and verify the Business Data against any applicable resources such as governmental databases and third party tools and software, and with respect to credit, debit, gift or other payment card information, Company has Advertiser’s express permission to use a PCI Compliant third party vendor to store and process payment cards such as credit, debit and gift cards.
3. Grant of License Rights.
3.1 Advertiser hereby grants Company, along with its successors and assigns, a worldwide, non-exclusive, perpetual, royalty free license to use, display, copy, publish, post, exhibit, broadcast, transmit, communicate, perform, distribute, and disseminate Advertiser’s Content on the Company Network and/or to incorporate such Advertiser Content into any form, medium, or technology now known or later developed. The license granted to the Company by the Advertiser shall permit publication of Advertiser Content on other third party websites which will assist Company with getting more viewers to see Advertiser’s Content, including any derivative works based on, or compilation including, such Content, for the purposes set forth in this Agreement including any uses necessary to effectuate the intent thereof. Advertiser hereby grants Company the right, in Company’s sole discretion, to process and/or make changes such as 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. Specifically, Advertiser agrees that Company may place an “DP” branded watermark on pictures submitted by Advertiser to Company for display on the Company’s websites. Advertiser also understands and hereby consents and agrees that Company may enable Content viewers, Website users, and others, to create and/or post comments, ratings, reviews and the like (collectively, “Viewer Comments”) about such Advertiser on one or more owned or affiliated websites. Advertiser expressly releases the Company Group 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.
3.2 Notwithstanding any provision hereunder to the contrary, Company shall have no obligation to enforce Advertiser’s copyrights or other intellectual property rights associated with the Content submitted and/or posted. Advertiser acknowledges that intellectual property theft is rampant on the Internet, and that Content may be stolen, copied or otherwise infringed by third parties over which Company has no control. Should any such infringement occur, Advertiser shall bear the sole obligation of enforcing Advertiser’s intellectual property rights, should it desire to do so. Company retains the right to enforce its own copyrights, license rights, and other intellectual property rights associated with the Company Network and related works. Advertiser will, at all times, reasonably cooperate with Company and its counsel in respect of any suspected infringement or suit for infringement, including, without limitation, testifying, and by making available any records, papers, information, and the like when reasonably requested by Company.
3.3 Privacy / Security Warning: Please take note that while Company takes reasonable efforts to protect any personal information or private data Advertisers provide to the Company, no website or server is immune from hacking or other breaches of security protocols, which can result in the wrongful public release of such information and data. Such actions may cause humiliation, mental / emotional distress, identity theft, and other significant damages. Advertiser therefore acknowledges and agrees that Company shall not be liable for any release of Advertiser’s private information, personal data, or Content, and Advertiser hereby holds Company harmless from any and all liability and claims associated therewith. Advertiser further acknowledges and agrees that the Website is an adult-oriented, erotic-themed advertising destination that can be accessed by users throughout the world. Advertiser therefore understands that any material submitted to the Website may be viewed by current and/or former friends, family, colleagues, associates, employers, and acquaintances.
3.4 Company is not required or obligated to pay Advertiser any monetary compensation for the license rights that Advertiser has granted to Company hereunder, and Advertiser agrees that the submission and/or posting of the Content on one or more of the outlets on the Company Network constitute adequate and sufficient consideration for the grant of said rights.
3.5 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 by Advertiser by terminating the Agreement pursuant to Section 8.10. Advertiser acknowledges that merely stopping payment on their advertisements or non-renewal of advertising with Company does not constitute a termination of license rights or this Agreement. 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. Notwithstanding anything to the contrary, Advertiser acknowledges that all Content may be maintained indefinitely by the Company, or its predecessors, agents, directors, shareholders, affiliates, successors and assigns for archival, contractual, and/or legal purposes including, without limitation, the publication of an archived section of ads, or a profile section of advertisers, on its website, a sale of the Company or all or substantially all of its assets, and/or bankruptcy, receivership, or insolvency of the Company.
3.6 All license rights granted to Company hereunder shall be royalty free, fully assignable, transferable, and sub-licensable by Company, in its sole discretion.
3.7 Advertiser may designate a third party to act on Advertiser’s behalf by executing an Advertiser Delegation Agreement. Advertiser acknowledges that Advertiser is fully responsible for the actions of a designated third-party acting on Advertiser’s behalf, with or without Advertiser’s consent. Advertiser acknowledges that execution of an Advertiser Delegation Agreement does not release Advertiser from the terms of this Agreement and such Advertiser is jointly and severally liable for all actions of any delegate.
3.8 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 including but not limited to “DP”, “DATING PORNSTAR” and any term containing Company’s protected trademarks, service marks or trade names. Any use of any of Company’s or Company’s licensors’ trade names, service marks or any other trade insignia is strictly prohibited, absent Company’s prior written consent. Specifically, Advertiser is not permitted to register any Uniform Resource Locator (URL) or World Wide Web address that contains any of Company’s or Company’s licensors’ trademarks or URLs or that contain any terms that are confusingly similar to Company’s trademarks or URLs.
3.9 Notwithstanding anything herein to the contrary, Company hereby grants to Advertiser a worldwide, royalty-free license to use, copy and publicly display the DP VERIFIED & Design collective membership mark in a manner subject to ongoing approval by Company. This license granted in this section shall continue until the first of the following events to occur: (a) Advertiser fails to meet the qualifications established by Company as a prerequisite to use the mark; or, (b) Company terminates this license in its sole discretion by and upon providing notice to Advertiser. Company reserves the right to implement a royalty or other consideration requirement for continuation of the rights granted hereunder.
4. Representations, Warranties, Covenants, and Indemnity by Advertiser. Advertiser hereby represents, warrants, and covenants to the Company as follows:
4.1 That Advertiser owns or possesses the legal authority to transfer or grant to Company any license rights, intellectual property rights, other legal or equitable rights necessary or required to permit the posting of the Content on one or more outlets on the Company Network, including without limitation, all copyrights, trademark rights, trade dress rights, trade name releases, and model releases of all persons appearing in said Content sufficient to permit the legal use of their names and likeness, persona and/or character(s), including but not limited to releases of all necessary rights of publicity, commercial exploitation and privacy.
4.2 That Advertiser has made no other agreements, obligations, commitments or legal encumbrances that might prevent or interfere with the rights and license that Advertiser has granted to Company hereunder or that might prevent Company from freely using the Content as provided in this Agreement.
4.3 That the Content is wholly original and has not been copied in whole or in part from any third party’s other work, advertisement, picture or source that is not owned or licensed to the Advertiser. The visual 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 of the person depicted and available for any services advertised.
4.4 That all persons depicted in any pictorial representation in the Content that Advertiser has submitted to Company were consenting 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 said persons were photographed, in connection with the creation or production of the Content.
4.5 That, if Advertiser utilizes Advertiser’s Account to post Content relating to third parties, that all photographs of individuals contained in the Content are photographs of an adult entertainer who the Advertiser actually presently employs and/or represents. Should such individual no longer be associated with the Agency, Agency shall notify Company within one business day, and shall make such alterations to any posted Content to reflect any such change in association. The Agency further represents that the person signing this Agreement has personally reviewed age verification documents to confirm that the individual depicted in any Content submitted to Company is over the legal age of consent in the jurisdiction where the Content was created.
4.6 DP has a zero-tolerance policy toward human trafficking, the exploitation of minors,prostitution, and any other illegal conduct. We cooperate with law enforcement,pursuant to appropriate process, such as a subpoena, in investigating criminal activity. DP has a zero-tolerance policy toward human trafficking, the exploitation of minors, prostitution, and any other illegal conduct. We cooperate with law enforcement, pursuant to appropriate process, such as a subpoena, in investigating criminal activity. Advertisements that violate our zero-tolerance policy will be rejected, and the submission of such advertisements for publishing may result in a referral to law enforcement and immediate account closure.
4.7 That any Advertiser who submits Content that refers to or depicts a place of business or venue, has the permission of the subject business or venue to publish such Content, and that such Content does not violate the intellectual property rights of the depicted business or venue.
4.8 That the Business Data Advertiser has presented to Company is valid, authentic and real; that the Advertiser has all rights necessary to use and present the Business Data to Company; that the information contained therein is true and accurate; and that all documentation used for identification of Advertisers is documentation that was issued by the authority of an appropriate and valid government agency of the person whose name appears on the documentation.
4.9 That Advertiser has and maintains valid, authentic, and real documentation of the person(s) depicted in the Content that Advertiser has presented to Company upon request, 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. Advertiser acknowledges that such documentation includes evidence of the date of production of any depiction.
4.10 That no claim has been made against Advertiser in relation to the Content or otherwise, and that Advertiser knows of no claim that the Content infringes the intellectual property rights or violates the rights in any other work and/or of any person, film, or corporation whatsoever.
4.11 That all obligations with respect to the Content, including, without limitation, all salaries, royalties, present and future license fees, service charges and the like, if any, have heretofore been fully paid.
4.12 That the Content: (a) is not illegal or contrary to Law; (b) does not promote illegal activities or link to websites or social media promoting 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) 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.
4.13 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.
4.14 That if Advertiser is conducting a business that is described or featured in the Content submitted to Company by Advertiser or that is on Advertiser’s website or Advertiser’s own social networking site, that said business complies with all applicable Laws, and that Advertiser has obtained all necessary licenses, permits and authorizations to engage in such business from all applicable agencies and authorities.
4.15 That Advertiser has read, understands, agrees to, and shall fully abide by Company’s then current policies, statements and other operational procedures as they appear at www.datingpornstar.com.
4.16 That Advertiser shall defend, indemnify and hold harmless the Company Group 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 another rights of any third party on account of the use of the Content by Company. Advertiser further agrees to reimburse Company for any costs, including attorneys fees, that it incurs in responding to subpoenas, discovery requests, court orders, law enforcement requests, or other legal process involving Advertiser.
4.17 That Advertiser’s submission of any Content which violates the requirements set forth in this Agreement may constitute a material breach of this Agreement, allowing Company to immediately terminate same.
5. Limitation of Liability for Submitted Content
5.1 Advertiser agrees that the Company Group 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. All Content is subject to Company’s record retention and other related policies. Advertiser expressly acknowledges that Advertiser is only supplying copies of the Content to Company, and that Company is under no obligation to maintain backup copies of any Content submitted by Advertiser or return Content to the Advertiser.
5.2 Advertiser agrees that the Company shall not be responsible or liable for the acts or omissions of any users that contact Advertiser or visit Advertiser’s websites via the Company Network or otherwise (“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 Group liable or responsible.
5.3 Advertiser agrees the Company shall not be responsible or liable for the actions of any person who responds to an advertisement or Advertiser Content posted on the Company Network. Advertiser specifically releases Company from any and all claims arising from personal injury, mental distress, property damage, loss of life, loss of liberty, injury, disease, pregnancy, or other damages / losses incurred by Advertiser as a result of interactions with third parties arising from Content posted on the Company Network.
6. Disclaimer of Warranties/Assumption of Risk; Limitation of Liabilities.
6.1 DISCLAIMER OF WARRANTIES/ASSUMPTION OF THE RISK. ADVERTISER EXPRESSLY AGREES THAT ADVERTISER’S USE OF THE SERVICES PROVIDED BY THE COMPANY IS AT ADVERTISER’S SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS, WITH ALL FAULTS” 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, QUALITY, TITLE AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PROVIDED BY LAW. THE COMPANY MAKES NO WARRANTY THAT THE SERVICES WILL MEET ADVERTISER’S REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES THE COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, THE VIEWERS OR USERS OF ITS WEBSITES, THE TRAFFIC, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. ADVERTISER UNDERSTANDS AND AGREES THAT ANY USE IT MAKES OF ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES 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. FURTHERMORE, ADVERTISER ALSO AGREES THAT ANY INFORMATIVE ARTICLES, ADVERTISING TIPS OR OPINION ARTICLES (COLLECTIVELY REFERRED TO HEREIN AS “ARTICLES”) LOCATED ANYWHERE ON THE COMPANY NETWORK ARE NOT INTENDED AS EITHER PROFESSIONAL OR LEGAL ADVICE AND THEY SOLELY REFLECT THE OPINIONS OF THE ARTICLES AUTHORS. ADVERTISER HEREBY AGREES THAT ANY RELIANCE ON ARTICLES IS SOLELY AN ADVERTISER’S DECISION AND ADVERTISER FURTHER AGREES TO WAIVE ANY CLAIMS OF LIABILITY THAT MAY ARISE FROM ADVERTISER’S DECISION TO FOLLOW ANY ADVICE THAT MAY BE CONTAINED IN ANY ARTICLES.
6.2 LIMITATION OF LIABILITIES. ADVERTISER UNDERSTANDS AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY GROUPBE LIABLE FOR ANY DAMAGES WHATSOEVER TO ADVERTISER OR TO ANY PERSON OR ENTITY CLAIMING RIGHTS DERIVED FROM AGENCY’S RIGHTS (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND OTHER SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR ANY OTHER PECUNIARY LOSS) RELATED TO, BASED UPON, OR ARISING OUT OF THIS AGREEMENT, THE SERVICES PROVIDED BY COMPANY, RELIANCE ON THE ARTICLES POSTED ON 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. ADVERTISER ACKNOWLEDGES THAT THE FOREGOING SENTENCE REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT, THAT SUCH VOLUNTARY RISK ALLOCATION WAS A MATERIAL PART OF THE BARGAIN BETWEEN THE PARTIES, AND THAT THE ECONOMIC OR OTHER TERMS OF THIS AGREEMENT WERE NEGOTIATED AND AGREED TO BY THE PARTIES IN RELIANCE ON SUCH VOLUNTARY RISK ALLOCATION. IN ANY CASE, THE COMPANY 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). BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY.
7. Company’s Role as Online Service Provider.
7.1 Advertiser agrees that Advertiser is the creator and producer of its Content and is solely responsible for any Content that is posted on one or more of the outlets on the Company Network, and accepts all obligations associated with the Content as described elsewhere in this Agreement.
7.2 The parties acknowledge and agree that Company acts as a facilitator of communication for its third party advertisers and/or users. Company does not produce, design, or otherwise provide any content to its advertisers. As such, the parties acknowledge and agree that Company shall be deemed to be an Online Service Provider (“OSP”) and shall also be deemed to be an Interactive Computer Service. Nothing contained hereunder shall be interpreted as a waiver of rights in this regard. Advertiser shall give notice and comply with the applicable notification procedures and agree that Company will have and shall fully benefit from the applicable safe harbor provisions, along with the immunity, liability limitations, Good Samaritan defense and other provisions pertaining to providers and users of Interactive Computer Services set forth in the applicable law, and all similar notice and other provisions limiting or otherwise insulating the liability of OSPs and providers or users of Interactive Computer Services pursuant to any jurisdiction’s laws that may apply in which Advertiser or Advertiser’s assigns elect to bring any claim against the Company Group or any Company’ assigns or sub-licensees of rights granted to Company hereunder.
7.3 Advertiser acknowledges its responsibility to prevent minors under its care from accessing harmful or inappropriate material. Advertiser agrees not to allow minors to view any such content, and Advertiser agrees to take responsible measures to prevent them from doing so. Numerous commercial online safety filters are available which may help users limit minors’ access to harmful or inappropriate material. Advertiser is hereby informed that it can research such services at websites such as:
https://www.fosi.org/good-digital-parenting/ ,
http://www.parentalguidance.org, among others.
Please note that Company makes no representation or warranty regarding any of the products or services referenced on such sites, and Company recommends that Advertiser conducts appropriate due diligence before purchasing or installing any online filter. Advertiser agrees to take particular steps to prevent minors from viewing content on the Company Network if Advertiser’s computer or mobile device can be accessed by a minor. Finally, Advertiser agrees that if it is a parent or guardian of a minor child, it is Advertiser’s responsibility, not Company’s, to keep any age-restricted content on the Company Network from being displayed or accessed by Advertiser’s children or wards.
7.4 Advertiser acknowledges and understands that Company operates as the provider of an Interactive Computer Service. Thus, Company is immune from, and cannot be held responsible for, claims arising from the publication or transmission of the Content of Advertisers and third parties. Company does not create such content, and is not responsible for the publication of remarks or communications of third-parties that may arguably rise to the level of being actionable under applicable law, including, but not limited to, the publication of material that might be considered defamatory, or violative of privacy or publicity rights. Note, that the law allows Company to remove or block any content found to be offensive, defamatory, obscene or otherwise violative of Company’s policies, without impacting Company’s status as the provider of an Interactive Computer Service.
8. Publishing Standards
8.1 The Company never publishes advertising content for, nor accepts advertising content from any person under the age of 18 years old.
The Company never publishes images or video of an Advertiser taken prior to the advertiser’s 18th birthday.
The Company never allows an Advertiser to advertise, suggest or insinuate that they are under the age of 18 years old (even when the Company has proof that the advertiser is actually at least 18 years old).
Advertisers are not allowed to market themselves using adjectives that could be used to describe a person under the age of 18 years old.
8.2 The Company is not a creator or owner of this 3rd party content and does not suggest or provide any content to 3rd parties. The Company does not enforce the intellectual property rights of advertisers, as advertisers retain the full rights and ownership of the content they provide, other than a limited license granted to the Company through the Advertiser Agreement to host their content.
The Company is simply a publisher and not a content provider. Materials submitted which meet our publishing standards and quality assurance requirements are published without the input of the Company’s staff.
The Company will not publish any text that would be considered sexually suggestive or explicit or that solicits or could be misconstrued as soliciting or engaging in any unlawful conduct or behavior.
The Company abides by US law; your advertising location does not determine which laws apply to your ad.
The Company will not publish any text that is discriminatory, offensive or otherwise inappropriate.
The Company will not publish any text that violates the copyrights, trademarks or intellectual property rights of any other adult industry company, product, person or service.
Advertisers cannot post any reference or link, hyperlink or URL to any 3rd party websites.
Advertisers cannot post threats to other Advertisers or Viewers.
All text on advertisements has to be submitted and published in English.
The Company requires Advertisers to submit their text in exactly the way in which they want it presented on their advertisement.
THE ADVERTISER’S ACCOUNT WILL BE CLOSED IF THEY SUBMIT TEXT THAT VIOLATES US LAW AND/OR SOLICITS ILLEGAL SERVICES.
8.3 The Company will not publish any image that would be misconstrued as soliciting or engaging in any unlawful conduct or behavior.
Images that display watermarks with links, hyperlinks or URLs cannot be published.
The Company will not publish any image that indicates, suggests, or would be misconstrued as suggesting that the Advertiser is below the age of 18 years old.
The Company will not publish any image of an advertiser taken before the advertiser was at least 18 years old.
The Company will not publish any image that is discriminatory, offensive or otherwise inappropriate.
The Company will not publish any image that would fall under Title 18 United States Code Section 2257.
The Company requires Advertisers to submit their images in exactly the way in which they want them presented on their advertisement.
8.4 The Company will not publish any video that would be considered sexually suggestive or explicit or that solicits or could be misconstrued as soliciting or engaging in any unlawful conduct or behavior.
The Company will not publish any video that is longer than 3 minutes.
The Company will not publish any video that is discriminatory, offensive or otherwise inappropriate.
The Company will not publish any video that would fall under Title 18 United States Code Section 2257.
The Company’s video publishing policy is consistent with the Company’s photo publishing policy.
9. Documents
9.1 All advertiser has to upload a photo of their colored, government issued identity card. The Company only accepts specific types of IDs. Acceptable forms of ID include:
North America:
- Driver’s Licenses issued in the United States
- Identification Cards issued in the United States
- Passports issued in the United States
- Permanent Resident Cards issued in the United States
- Driver’s Licenses and Identification Cards issued by US territories (Puerto Rico, Guam, etc.)
Canada:
- Identification Cards issued in Canada
- Driver’s Licenses issued in Canada
United Kingdom:
- Identification Cards issued in the United Kingdom
- Driver’s Licenses issued in the United Kingdom
Italy:
- Identification Cards issued in Italy
- Driver’s Licenses issued in Italy
The Company accepts passports issued by any foreign country.
9.2 In the event that the Company cannot see the face of the Advertiser in an image (e.g. blurred face, image cropped at the shoulders to remove head and images of Advertisers in positions that obscure their facial features), the Company’s staff is required to apply a heightened level of scrutiny to the entirety of the content and context of the advertisement.
If for any reason, there is doubt that the Advertiser is over the age of 18 (appearance of advertiser’s body traits, text stating or alluding to the fact that the advertiser may be young, etc.), the Advertiser is required to submit an unblurred, uncropped or otherwise unobstructed facial image.
This unobstructed image will be used, in addition to the other advertisement images on file to determine whether the images submitted on the advertisement and the ID that the Company has on file match.
9.3 Advertisers have the option to become DP Verified which is a label only.
We only guarantee that the documents that the Company has on file match with the Authentication Photo uploaded by the model.
10. Miscellaneous Provisions.
10.1 All Content and other information provided by Advertiser to Company is deemed by the parties to be not confidential for any purpose. 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.
10.2 Each party acknowledges and agrees that it has fully read and understands this Agreement and has had the opportunity to engage legal counsel of its choice prior to acceptance. This Agreement contains the entire agreement between Advertiser and Company regarding the subject matter addressed hereunder. 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. While this Agreement may be transferred or assigned by Company, it may not be transferred or assigned by Advertiser.
10.3 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.
10.4 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.
10.5 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.
10.6 The parties agree that this Agreement shall be governed by and construed under the laws of Switzerland. 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, the dispute shall be finally settled under the Rules of Arbitration of the Zurich Chamber of Commerce by one arbitrator, knowledgeable in Internet and e-Commerce disputes, appointed in accordance with said rules. The proceedings shall take place in Zurich and shall be held in the English Language, excepting only claims for which injunctive relief is properly sought which must be in a court of competent jurisdiction located in Zurich.
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 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 IN REGARD TO ARBITRAL CLAIMS.
10.7 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.
10.8 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; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, data security breach, 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.
10.9 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.
10.10 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. However, any cancellation by an Advertiser will result in all Advertiser-provided Content being removed from the public facing sites of the Company Network, subject to retention for archival, contractual, or legal purposes pursuant to Section 3.5. No content provided by Advertiser shall be returned upon termination. In the event of termination by the Advertiser, or termination by Company for cause, no payments shall be returned or refunded. Other than as provided hereunder, upon termination, the relationship of the parties shall cease.
10.11 All notices (e.g., under Section 3.5 or Section 8.10) to Company hereunder must be sent to the Company using the contact form located at https://www.datingpornstar.com/contact-us/ and in the Comment Section you must note attention to “Legal.”
10.12 For avoidance of doubt, to the extent an indemnification or release is provided in favor of or for the benefit of Company, such indemnification or release shall extend to the Company’s agents, affiliates, employees, officers, directors, shareholders, attorneys, vendors, contractors, predecessors, successors, and assigns.
10.13 Sections 1, 2.1-2.4, 2.6-2.12, 2.14, 3.2-3.8, and Sections 4 through 10, all Advertiser’s representations, warranties, and indemnification obligations, and any sections which by their nature would survive, shall survive termination or expiration of this Agreement for any reason.
Important!
Notwithstanding anything to the contrary in this Agreement or elsewhere, Company always 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 and in addition, sell, transfer or assign any or all of the Advertiser data and information including, without limitation, personally identifiable information as such term has been broadly interpreted and defined (hereinafter “PII”) and/or provide it to a third party and all predecessors, successors and assigns in the event of bankruptcy, receivership, or insolvency or if Company or all or substantially all of the Company’s assets are acquired in a sale, merger or other reorganization of the Company in accordance with this Agreement – this authorization and permission to survive any termination or expiration of this Agreement. 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.
WHEREUPON, the parties hereby agree to the terms set forth above.
/s/ Company
/s/ Advertiser
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