respect to our telephone service.
I. INTRODUCTORY PROVISIONS:
1. Hereinafter, the user/subscriber/viewer of any website owned and/or operated by BREATHLESS WHISPERS will be referred to as "you," "the user" or by other similar syntax.
2. Hereinafter, BREATHLESS WHISPERS will be referred to as "we," us," or by other similar syntax.
3. Hereinafter, whichever website you have viewed or subscribed to shall be referred to as SITE. When the HOURGLASS GROUP LTD/BREATHLESS WHISPERS network of websites is collectively discussed, it will be referred to as SITES.
2. This Agreement is intended to be governed by the Electronic Signatures in
Global and National Commerce Act (E-Sign Act). You manifest your agreement to
clicking any button containing the words "I agree" or similar syntax or merely
a paper copy of this transaction and print this form for your personal records.
You have the right to withdraw your consent to use the E-Sign Act by emailing
us. Your consent to use the E-Sign Act is limited to providing the information
on this form.
C. Revisions to This Policy: We reserve the right to revise, amend, or modify
SITE, you must exit SITE immediately, you may not use or access SITE, and you
may not print or download any materials from them. You may use and access SITE
regularly and read them carefully before using SITE. You affirm you have read
II. IMAGES AND CONTENT:
A. These SITES contain images and content, including but not limited to text,
software, images, graphics, data, messages, or any other information, and any
other World Wide Web Site owned, operated, licensed, or controlled by SITE
B. All Materials displayed on the SITE are protected by the First Amendment
rights to Free Speech, Free Expression, and Freedom of the Press, and parallel
provisions of other constitutional provisions and state constitutions. You
acknowledge SITE may offer online content that could be deemed "adult" or
"erotic" in nature. Additionally, you are on notice some of the Materials
presented on the SITE may contain graphic visual depictions, graphic audio, and
descriptions of sexually oriented, explicit, offending, or disturbing
activities. You acknowledge you are aware of the nature of the Materials
provided by SITE, you are not offended by such Materials, and you access SITE
freely, voluntarily, and willingly. You also acknowledge this SITE is intended
to contain only images protected by the First Amendment to the United States
C. If you are seeking information regarding illegal activities, please leave
this SITE immediately. You agree you are aware of the community standards of
your local community, and you will only access the content on the SITE if you
believe, upon diligent investigation, the content on the SITE does not offend
the community standards prevalent in your community.
D. You further agree not to use or access SITE if doing so would violate the
laws of your state, province or country.
III. Age of Majority. You represent and warrant you are at least 18 or 21 years
of age, depending on the age of majority in your jurisdiction, and you have the
legal capacity to enter into this Agreement. If you are not at least 18 or 21
years of age, depending on the age of majority in your jurisdiction, you must
exit SITE immediately and may not use or access SITE, print or download any
Materials from it. SITE does not assume any responsibility or liability for any
misrepresentations regarding a user's age. You represent and warrant you will
not allow any minor to access any of our SITES.
IV. NO CHILD PORNOGRAPHY:
You understand all models appearing on this SITE are, and were at the time of
all recorded images, at least 18 years of age, and our SITE contains no child
pornography. If you seek any form of child pornography (including so-called
"virtual" child pornography), you must exit this SITE immediately. You
acknowledge all Materials on the SITE are protected by the First Amendment. We
take a strong and definite stand against child pornography and only allow images
and Materials protected by the First Amendment. If you identify any images, real
or simulated, depicting minors engaged in sexual activity within SITE, you are
required to report the images to SITE. Include with your report any appropriate
evidence, including the date and time of identification. All reports will
immediately be investigated and the appropriate action will be taken. We
enthusiastically cooperate with any law-enforcement agency investigating child
pornography. If you suspect other outside websites are participating in unlawful
activities involving minors, please report them to www.asacp.org. Users should
implement parental control protections, such as computer hardware, software, or
filtering services, which may help users to limit minors' access to harmful
V. ACCESS TO, LIMITED LICENSE, AND INTERFERENCE WITH, SITE:
A. Access. To access SITE or some of the resources it has to offer, you may be
asked to provide certain billing details or other information. It is a condition
of your use of this SITE that all information you provide be correct, current,
and complete. If SITE believes the information you provide is not correct,
current, or complete, SITE has the right to refuse you access to SITE or any of
its resources, and to terminate or suspend your access at any time.
SITE, SITE hereby grants you a limited nontransferable personal license to
access and use SITE and the Materials contained therein for the purposes of
SITE's intent. SITE provides the Materials and phone services of this SITE for
the personal, non-commercial use by viewers, fans, visitors, customers and/or
potential customers. All Materials and phone services on the SITE shall be for
private non-commercial use only, and all other uses are strictly prohibited.
SITE reserves the right to limit materials viewed/phone services rendered. You
agree to prevent any unauthorized copying of SITE, or any of the Materials
contained therein. Any unauthorized use of SITE or any of the Materials
contained therein terminates this limited license effective immediately. This is
a license to use and access SITE for its intended purpose and is not a transfer
of title. You further agree to not copy or redistribute any of the content
appearing on this SITE. SITE reserves the right to terminate this license at any
time if you breach or violate any provision of this Agreement, in which case you
will be obligated to immediately destroy any information or materials you have
downloaded, printed or otherwise copied from this SITE. Violators of this
limited license may be prosecuted to the fullest extent under the applicable
C. Interference. Except where expressly permitted by law, you may not translate,
reverse-engineer, decompile, disassemble, or make derivative works from our
SITE's Materials. User hereby agrees not to use any automatic device or manual
process to monitor or reproduce the SITE, and will not use any device, software,
computer code, or virus to interfere or attempt to disrupt or damage SITE or any
communications on it.
VI. RESTRICTIONS ON USE OF SITE:
SITE. You may not use SITE for any other purpose, including any commercial
purpose, without SITE's express prior written consent.
B. Without the express prior written authorization of SITE, you may not:
Duplicate SITE or any of the Materials contained therein (except as expressly
provided elsewhere in this Agreement); Create derivative works based on the SITE
or any of the Materials contained therein; Use SITE or any of the Materials
contained therein for any public display, public performance, sale or rental;
Re-distribute SITE or any of the Materials contained therein; Remove any
copyright or other proprietary notices from SITE or any of the Materials
contained therein; Frame or utilize any framing techniques in connection with
the SITE or any of the Materials contained therein; Use any meta-tags or any
other "hidden text" using SITE's name or marks; "Deep-link" to any page of SITE
(including the homepage); Circumvent any encryption or other security tools used
anywhere on the SITE (including the theft of user names and passwords or using
another person's user name and password in order to gain access to a restricted
area of the SITE); Use any data mining, bots, or similar data gathering and
extraction tools on the SITE; Decompile, reverse engineer, modify or disassemble
any of the software aspect of the Materials except and only to the extent
permitted by applicable law; Sell, rent, lease, license, sublicense, transfer,
distribute, re-transmit, time-share, use as a service bureau or otherwise assign
to any third party the Materials or any of your rights to access and use the
Materials as granted in Paragraph IV above; or Bookmark any page of SITE beyond
the entrance screen.
C. You agree to cease any unauthorized use of SITE immediately. If SITE provides
a service enabling users to share information or communicate with other users,
you hereby agree not to publish, disseminate or submit any defamatory, offensive
or illegal material while using the SITE or other services included on the SITE.
You are solely responsible for submitting any material that violates any United
States or International laws even if a claim arises after your service is
terminated, and, by doing so, your actions shall constitute a material breach of
this Agreement and the SITE shall terminate all your rights under this
VII. DISCLAIMER OF WARRANTY:
A. You expressly agree use of SITE or any of the materials contained therein is
at your own and sole risk.
B. SITE materials and phone services contained therein are provided "as is"
without warranty of any kind, either express or implied, including but not
limited to, any implied warranties of merchantability, fitness for a particular
purpose, title, or non-infringement.
C. SITE makes no representations or warranties of SITE or any materials
contained therein will be uninterrupted, timely, secure, or error free; nor does
SITE make any representations or warranties as to the quality, suitability,
truth, usefulness, accuracy or completeness of SITE or any of the materials
D. You also understand and agree any material and/or data downloaded or
otherwise obtained through the use of SITE or any of the materials contained
therein is done at your own discretion and risk and you will be solely
responsible for any damage to your computer system or loss of data resulting
from the download of such material and/or data.
E. You understand SITE cannot and does not guarantee or warrant files available
for downloading from the internet will be free of viruses, worms, Trojan horses
or other code that may manifest contaminating or destructive properties. SITE
does not assume any responsibility or risk for your use of the internet.
F. SITE makes no warranty regarding any goods or services purchased or obtained
through the SITE or any transaction entered into through the SITE and is not
responsible for any use of confidential or private information by sellers or
G. SITE owner may change any of the information found at this SITE at any time
without notice including the terms of service without notice. SITE owner makes
no commitment to update the information found at this SITE. SITE makes no
commitment to update the materials.
H. The warranties and representations set forth in this agreement are the only
warranties and representations with respect to this agreement, and are in lieu
of any and all other warranties, written or oral, express or implied, arising
either by agreement between the parties or by operation of law, including
warranties of merchantability and fitness for a particular purpose. None of
these warranties and representations will extend to any third person. Some
jurisdictions do not allow the exclusion of certain warranties, so some of the
above exclusions may not apply to you.
VIII. ILLEGAL ACTS:
A. The provision of any services which is in violation of any laws is strictly
prohibited. If we determine you or any user has provided or intends to purchase
or provide any services in violation of any law, your ability to use SITE will
be terminated immediately. We do hereby disclaim any liability for damages
arising from any user providing any services for any purpose violating any law.
You do hereby agree to defend, indemnify and hold us harmless from any liability
arising should you violate any law.
B. You do also hereby agree to defend and indemnify us should any third party be
harmed by your illegal actions or should we be obligated to defend any claims
including, without limitation, any criminal action brought by any party not
affiliated with this SITE.
C. Our SITE contains material that may be offensive to third parties. You do
hereby agree to indemnify and hold us harmless from any liability arising from
reviewing such material and warrant and agree to cease review of SITE should you
find it offensive.
D. If you are seeking services in violation of any applicable laws whatsoever,
you may not use this SITE and do hereby agree to exit it immediately. Thus, all
disputes relating to the online store shall be directed to the store, and not
IX. LIMITATION OF LIABILITY:
A. In no event shall SITE (or its licensors, agents, suppliers, resellers,
service providers, or any other subscribers or suppliers) be liable to you, or
any other third party for any direct, special, indirect, incidental,
consequential, exemplary, or punitive damages, including without limitation,
damages for loss of profits, loss of information, business interruption,
revenue, or goodwill, which may arise from any person's use, misuse, or
inability to use SITE or any of the materials contained therein, even if SITE
has been advised of the probability of such damages. This is for any matter
arising out of or relating to this agreement, whether such liability is asserted
on the basis of contract, tort or otherwise, even if SITE has been advised of
the possibility of such damages.
B. In no event shall SITE'S maximum total aggregate liability hereunder for
direct damages exceed the total fees actually paid by you for use of a SITE or
SITE for a period of no more than one (1) month from the accrual of the
applicable cause or causes of action. Because some jurisdictions prohibit the
exclusion or limitation of liability for consequential or incidental damages,
the above limitation may not apply to you.
You agree to defend, indemnify, and hold harmless SITE, its officers, directors,
shareholders, employees, independent contractors, telecommunication providers,
and agents, from and against any and all claims, actions, loss, liabilities,
expenses, costs, or demands, including without limitation legal and accounting
fees, for all damages directly, indirectly, and/or consequentially resulting or
allegedly resulting from your, or you under another person's authority including
without limitation to governmental agencies, use, misuse, or inability to use
SITE or any of the Materials contained therein, or your breach of any of these
claim or suit, and cooperate fully (at your expense) in the defense of such
claim or suit. We reserve the right to participate in the defense of such claim
or defense at its own expense, and choose its own legal counsel, but are not
obligated to do so.
XI. LINKS AND LINKING:
A. Some websites which are linked to SITE are owned and operated by third
parties. Because SITE has no control over such websites and resources, you
acknowledge and agree SITE is not responsible or liable for the availability of
such external websites or resources, and does not screen or endorse them, and is
not responsible or liable for any content, advertising, services, products, or
other materials on or available from such websites or resources.
B. You further acknowledge and agree SITE shall not be responsible or liable,
directly or indirectly, for any damage or loss caused or alleged to be caused by
or in connection with use of or reliance on any such third-party content, goods
or services available on or through any such website or resource. If you decide
to access any such third party website, you do so entirely at your own risk and
C. Users further acknowledge use of any website controlled, owned or operated by
Policy, which are incorporated by reference.
D. Links to external websites (including external websites framed by SITE) or
inclusions of advertisements do not constitute an endorsement by SITE of such
websites or the content, products, advertising or other materials presented on
such SITE, but are for user's convenience.
E. Users access them at their own risk. SITE expressly disclaims any liability
for any damages whatsoever incurred by any user in connection with the use of
any website, the access to which was found through this SITE. SITE expressly
disclaims any liability derived from the use and/or viewing of any links
appearing on this SITE.
F. All users do hereby agree to hold SITE harmless from any and all damages and
liability resulting from the use of links appearing on SITE. SITE reserves the
right to terminate any link or linking program at anytime.
XII. TRADEMARK INFORMATION:
A. This SITE and the aforementioned names of the SITES are service marks and/or
trademarks of the SITE. The terms "SITE NAME" and "COMPANY" are considered
trademarks of the SITE. We aggressively defend our intellectual property rights.
B. Other manufacturers' product and service names referenced herein may be
trademarks and service marks of their respective companies and are the exclusive
property of such respective owners, and may not be used publicly without the
express written consent of the owners and/or holders of such trademarks and
C. SITE's marks, logos, domains, and trademarks may not be used publicly except
with express written permission from SITE, and may not be used in any manner
likely to cause confusion among consumers, or in any manner that disparages or
XIII. COPYRIGHT INFORMATION:
A. The Materials accessible from SITE, and any other World Wide Web Site owned,
operated, licensed, or controlled by SITE, is the proprietary information and
valuable intellectual property of SITE or the party that provided the Materials
to SITE, and SITE or the party that provided the Materials to SITE retains all
right, title, and interest in the Materials,
B. The Materials may not be copied, distributed, republished, modified,
uploaded, posted, or transmitted in any way without the prior written consent of
SITE, except you may print out a copy of the Materials solely for your personal
use. In doing so, you may not remove or alter, or cause to be removed or
altered, any copyright, trademark, trade name, service mark, or any other
proprietary notice or legend appearing on any of the Materials.
C. Modification or use of the Content except as expressly provided in these
D. Neither title nor intellectual property rights are transferred to you by
access to SITE.
All Materials included on SITE, such as text, graphics, photographs, video and
audio clips, music, soundtracks, button icons, streaming data, animation,
images, downloadable materials, data compilations and software is the property
of SITE or its content suppliers and is protected by United States and
international copyright laws. The compilation of all Materials on the SITE is
the exclusive property of the SITE or its content suppliers and protected by
United States and international copyright laws, as well as other laws and
XIV. EXPORT CONTROL:
A. You understand and acknowledge the software elements of the Materials on the
SITE may be subject to regulation by agencies of the United States Government,
including the United States Department of Commerce, which prohibits export or
diversion of software to certain countries and third parties. Diversion of such
Materials contrary to United States' or international law is prohibited.
B. You will not assist or participate in any such diversion or other violation
of applicable laws and regulations.
C. You warrant you will not license or otherwise permit anyone not approved to
receive controlled commodities under applicable laws and regulations and you
will abide by such laws and regulations.
D. You agree none of the Materials are being or will be acquired for, shipped,
transferred, or re-exported, directly or indirectly, to proscribed or embargoed
countries or their nationals or be used for proscribed activities.
XV. NO AGENCY RELATIONSHIP:
Nothing in this Agreement shall be deemed to constitute, create, imply, give
effect to, or otherwise recognize a partnership, employment, joint venture or
formal business entity of any kind; and the rights and obligations of the
parties shall be limited to those expressly set forth herein.
A. Notice. Any notice required to be given under this Agreement may be provided
by email to a functioning email address of the party to be noticed, by a general
posting on the SITE, or personal delivery by commercial carrier such as FedEx or
Airborne. Notices by customers to SITE shall be given by electronic messages
unless otherwise specified in the Agreement.
B. Change of Address. Either party may change the address to which notice is to
be sent by written notice to the other party pursuant to this provision of the
C. When Notice is Effective. Notices shall be deemed effective upon delivery.
Notices delivered by overnight carrier (e.g., United States Express Mail or
Federal Express) shall be deemed delivered on the business day following
mailing. Notices mailed by United States Mail, postage prepaid, registered or
certified with return receipt requested, shall be deemed delivered five (5) days
after mailing. Notices delivered by any other method shall be deemed given upon
receipt. Notices by email and facsimile transmission, with confirmation from the
transmitting machine that the transmission was completed, are acceptable under
this Agreement provided they are delivered one (1) hour after transmission if
sent during the recipient's business hours, or 9:00 a.m. (recipient's time) the
next business day. Either Party may, by giving the other Party appropriate
written notice, change the designated address, fax number and/or recipient for
any notice or courtesy copy, hereunder.
D. Refused, Unclaimed, or Undeliverable Notice. Any correctly addressed notice
is refused, unclaimed, or undeliverable, because of an act or omission of the
Party to be notified shall be deemed effective as of the first date said notice
was refused or deemed undeliverable by the postal authorities, messenger,
facsimile machine, email server, or overnight delivery service.
XVII. COMMUNICATIONS NOT PRIVATE:
SITE does not provide any facility for sending or receiving private or
confidential electronic communications. All messages transmitted to SITE shall
be deemed to be readily accessible to the general public. Visitors should not
use this SITE to transmit any communication for which the sender intends only
the sender and the intended recipient(s) to read. Notice is hereby given that
all messages entered into this SITE can and may be read by the agents and
operators of this service, regardless of whether they are the intended
recipients of such messages.
XVIII. FORCE MAJEURE:
SITE shall not be responsible for any failure to perform due to unforeseen
circumstances or to causes beyond our reasonable control, including but not
limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical
storms or other natural disasters; war, riot, arson, embargoes, acts of civil or
military authority, or terrorism; fiber cuts; strikes, or shortages in
transportation, facilities, fuel, energy, labor or materials; failure of the
telecommunications or information services infrastructure; hacking, SPAM, or any
failure of a computer, server or software, including Y2K errors or omissions,
for so long as such event continues to delay SITE's performance.
XIX. GENERAL PROVISIONS:
State of California, excluding its conflict of law provisions. The parties agree
the United Nations Convention on Contracts for the International Sale of Goods
hereby submit to the personal jurisdiction of the state and federal courts of
the State of California. Exclusive venue for any litigation or arbitration
permitted under this Agreement shall be with the state and federal courts
located in Los Angeles County, California.
B. Rights to Injunctive Relief. Both parties acknowledge remedies at law may be
inadequate to provide an aggrieved party with full compensation in the event of
the other party's breach, and an aggrieved party shall therefore be entitled to
seek injunctive relief in the event of any such breach, in addition to seeking
all other remedies available at law or in equity.
C. Arbitration. The parties shall submit all disputes relating to or arising
from this Agreement or the relationship created by or subject to this agreement,
whether contract, tort, or both to binding arbitration in Los Angeles County,
California, in accordance with California Code of Civil Procedure sections 1280
through 1294.2. Either party may enforce the award of the arbitrator under
section 1285 of the Code. THE PARTIES UNDERSTAND THAT THEY ARE WAIVING THEIR
RIGHTS TO A JURY TRIAL. Notwithstanding the foregoing, BREATHLESS WHISPERS
retains the right to dispense with this arbitration provision with respect to
any claim that includes a request for injunctive relief and proceed in any court
having jurisdiction over the subject matter.
D. Assignment. The rights and liabilities of the parties hereto will bind and
inure to the benefit of their respective assignees, successors, executors, and
administrators, as the case may be.
E. Venue. Any dispute that arises under or relates to this Agreement, whether
contract, tort, or both, shall be resolved in any court in Los Angeles County,
California having jurisdiction over same, by way of an arbitration as set forth
above in Los Angeles County, California, and you agree to submit yourself to the
jurisdiction of any such court.
F. Choice of Law. This Agreement, and any dispute arising from the relationship
between the parties to this Agreement, shall be governed by California law,
excluding any laws that direct the application of another jurisdiction's laws.
G. Severability. If for any reason a court of competent jurisdiction or an
be unenforceable, that provision will be enforced to the maximum extent
H. No Waiver. No waiver of SITE shall be deemed a waiver of any subsequent
provision hereof is held invalid or unenforceable by a court of competent
jurisdiction, such invalidity shall not affect the validity or operation of any
other term, clause or provision and such invalid term, clause or provision shall
I. Headings. All headings are solely for the convenience of reference and shall
between the parties with respect to your access and use of SITE, the Materials
contained therein, and supersede and replace all prior understandings or
agreements, written or oral, regarding such subject matter.
K. Modifications. SITE reserves the right to change any of the provisions posted
continued use of the SITE following SITE's posting of any changes to these Terms
of Use constitutes your acceptance of such changes. SITE does not and will not
assume any obligation to provide you with notice of any change to these Terms of
L. Government Rights. The software elements of the Materials have been developed
at private expense and are "commercial computer software" or "restricted
computer software" within the meaning of the FARs, the DFARs, and any other
similar regulations relating to government acquisition of computer software.
Nothing contained herein will be deemed to: (1) grant any government agency any
license or other rights greater than are mandated by statute or regulation for
commercial computer software developed entirely at private expense, or (2)
restrict any government rights in any extensions or custom solutions provided
hereunder and developed at government expense. You further agree not to upload
to our SITE any data or software that cannot be exported without prior written
government authorization, including, but not limited to, certain types of
encryption software. This assurance and commitment shall survive termination of
M. Other Jurisdictions. SITE makes no representation the SITE or any of the
Materials contained therein are appropriate or available for use in other
locations, and access to them from territories where their content may be
illegal or is otherwise prohibited. Those who choose to access SITE from such
locations do on their own initiative and are solely responsible for compliance
with all applicable local laws.
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