THIS DISCLAIMER AND TERMS OF SERVICE AGREEMENT
("AGREEMENT") CONSTITUTES A LEGAL AGREEMENT
BETWEEN YOU ("USER") AND SpicyMatures
("SpicyMatures") AND DESCRIBES THE TERMS AND
PROVISIONS APPLICABLE TO YOUR USE OF PROPRIETARY
SITES AND SERVICES WITHIN THE DOMAIN AND
SUB-DOMAINS OF SpicyMatures.COM ("SERVICES") AND
ANY FUNCTIONS TO BE PERFORMED THEREBY. YOU MUST
READ, AGREE WITH, AND ACCEPT ALL OF THE TERMS
AND PROVISIONS CONTAINED IN THIS AGREEMENT,
INCLUDING THE TERMS AND PROVISIONS EXPRESSLY SET
FORTH BELOW AND THOSE INCORPORATED BY REFERENCE,
BEFORE YOUR USE OF THE SERVICES IS AUTHORIZED.
THE ABOVE NAMED PARTIES ARE HEREIN REFERRED TO
SINGULARLY AS A "PARTY" AND COLLECTIVELY AS
"PARTIES".
THIS AGREEMENT WILL BE GOVERNED BY THE
ELECTRONIC SIGNATURES ACT. YOU HEREBY AGREE TO
BE BOUND BY THE TERMS AND PROVISIONS CONTAINED
IN THIS AGREEMENT BY SELECTING "I AGREE" AND
CLICKING THE APPROPRIATE BUTTON BELOW OR BY ANY
ACCESS, VIEWING, OR USE OF THE SERVICES. IF YOU
DO NOT AGREE, YOU MUST SELECT "I DISAGREE" AND
NOT ACCESS, VIEW, OR USE ANY PART OF THE
SERVICES.
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Ownership and Intellectual Property
1.1 "User Materials" is defined as any
information, data, content, or materials you
provide (directly or indirectly) to SpicyMatures
or other Users. User Materials include
information you submit, transfer, post, or
deliver to the Services, including without
limitation, data, information, email addresses,
User Accounts, User Accounts, and passwords, as
well as any other information resulting from or
produced by your use of the Services obtained by
SpicyMatures. Users are solely responsible for
User Materials, and you hereby agree that
SpicyMatures acts as a passive means for the
online storage, distribution, and publication
thereof.
1.2 Other than User Materials, all information
included within or available via the Services,
such as data, information, processes,
procedures, methods, advertisements, articles,
publications, text, graphics, logos, icons,
images, audio, videos, software, and other
analog or digital information in any media, now
known or later developed (collectively the
"Content"), is the property of SpicyMatures or
its licensors and is protected by copyright,
trademark, patent, or other intellectual and
proprietary rights.
1.3 The compilation, meaning the collection,
arrangement, and assembly, of all Content via
the Services are the exclusive property of
SpicyMatures or its licensors , and is protected
by copyright, trademark, patent, or other
intellectual and proprietary rights. All
software used via the Services are the property
of SpicyMatures or its licensors and is
protected by copyright, patent or other
intellectual and proprietary rights.
1.4 All elements of the Services, including
without limitation, the general design and
Content, are protected by trade dress, moral
rights, copyright, trademark, patent, or other
intellectual and proprietary rights. Except as
explicitly permitted under this or another
agreement with SpicyMatures or one of its
respective licensors , no portion or element of
this Services or its Content may be copied or
retransmitted via any means, and this Services,
its Content, and all related rights will remain
the exclusive property of SpicyMatures or its
licensors unless otherwise expressly
agreed.
1.5 User may not reproduce, resell or sublicense
the Services without the express prior written
consent of SpicyMatures. User will not use the
Services for any other purpose or for the
benefit of any of its affiliates or any third
party except as expressly authorized in advance
in writing by SpicyMatures. User may not make
any derivative works or other products or
software based in whole or in any part on the
Services. User may not modify the Services,
Services, or the documentation for its own use
or for the use of any other person or
entity.
1.6 The Services are copyrighted by SpicyMatures
and all websites, html code, and documents
printed or generated by the Services or
contained in the documentation are covered by
the copyright notice and the restrictions on
reproduction, publication, and distribution
contained in this Agreement apply. User will not
remove or alter any copyright notice contained
in or generated by the Services.
1.7 You agree that you will not use any robot,
spider, other automatic device, or manual
process to monitor or copy any portion of the
Services contained herein without the prior
express written permission of SpicyMatures. You
agree that you will not use any device,
software, or routine to bypass any operational
element, or to interfere or attempt to interfere
with the proper working of the Services, server,
or activities conducted therein. You agree that
you will not take any action that imposes an
unreasonable or disproportionately large load on
Services or network infrastructure.
1.8 Much of the Content is updated on a real
time basis and is proprietary or licensed to
SpicyMatures by its Users or licensors . You
agree that you will not copy, reproduce, alter,
modify, create derivative works, or publicly
display any Content, except for User Materials,
without the prior express written permission of
SpicyMatures or respective SpicyMatures.
1.9 "SpicyMatures" and any accompanying logos,
alone or in conjunction with any text, are
trademarks and service marks of SpicyMatures and
are in use, registered, or pending in certain
countries. SpicyMatures retains all right,
title, and interest in and to its trademarks,
service marks, domain names, Internet sites, and
trade names worldwide (collectively the
"Marks"). You agree to use the Marks only with
the prior express written permission of
SpicyMatures, and then only in the manner
authorized. You may not alter, modify, or change
the Marks in any way under any
circumstances.
1.10 Subject to the terms and provisions of this
Agreement, SpicyMatures grants a limited license
to you to make personal use of the Services only
for their intended purposes. This license
expressly excludes any resale or making a
derivative of the Services, the collection and
use of other Users' personal information, email
addresses, User Materials, or any data
extraction or data mining whatsoever, except
with the prior express written permission of the
respective owner. You may not repost or
otherwise reuse or distribute materials created
by or resulting from using the Services.
1.11 You may not use, export, or re-export the
Content or Services at this Services or any copy
or adaptation thereof in violation of any
applicable law or regulation, including without
limitation, United States export laws and
regulations.
1.12 You agree to take all action and cooperate,
at SpicyMatures' request, to protect
SpicyMatures' right, title, and interest in any
property, and agree to execute any documents
necessary to perfect SpicyMatures' ownership of
such right, title, and interest.
1.13 Nothing in this Agreement grants either
Party ownership or other rights except in
accordance with the terms of this
Agreement.
-
Services License and Use of the
Services
2.1 Subject to the terms and provisions of this
Agreement, SpicyMatures hereby grants to User a
non-exclusive, non-transferable,
non-sublicensable license to use and operate the
Services in conjunction with the operation and
function of the Services in accordance with the
documentation.
2.2 The license granted in this Section extends
to the Services in executable code form as its
exists as an integral part of the Services only
and not to source code. SpicyMatures does not
grant, and User does not obtain under this
Agreement, any right to distribute, sell, or
sublicense the Services in any form. Except as
provided herein, SpicyMatures grants no rights
or licenses to User, by implication, estoppel,
or otherwise, in or to the Services or any
intellectual property rights therein. User
acknowledges that no right or license in or to
any source code or technical-level documentation
is granted under this Agreement. SpicyMatures
reserves all rights not expressly granted to
User hereunder.
2.3 User acknowledges that use of the Services
is limited to the scope of the license granted
under this Section and that this Agreement does
not permit the User to use the Services other
than as provided herein. User acknowledges that
the Services and its structure, organization,
and source code constitute valuable trade
secrets of SpicyMatures and its suppliers.
Without SpicyMatures' prior written consent,
User will not knowingly or negligently permit
other individuals or entities to:
(A) use or copy the Services except in strict
accordance with the terms and provisions of this
Agreement;
(B) modify, translate, alter, adapt, reverse
engineer, decompile, disassemble (except to the
extent applicable laws specifically prohibit
such restriction), reproduce, distribute or
display, or create derivative works,
compilations or collective works based on the
Services;
(C) apply any process, technique or procedure to
ascertain or derive the source code to the
Services, which is a valuable trade secret of
SpicyMatures;
(D) merge the Services with any other software;
publish or provide any results of benchmark
tests run on the Services to a third
party;
(E) sublicense, rent, lease, grant a security
interest in, or otherwise transfer rights to the
Services except as specifically permitted
herein;
(F) use the Services to operate in or as a
time-sharing, outsourcing, or service bureau
environment other than for User's own internal
use; or
(G) in any way allow third-party access to
the Services.
2.4 The Services are available only to
individuals who can form legally binding
contracts under applicable law. Without limiting
the foregoing, the Services are not available to
minors or to temporarily or indefinitely
suspended Users. If you are a minor, you can use
this service only in conjunction with your
parents or guardians. If you do not qualify, do
not access or use the Services.
2.5 To use the Services, you must accept
the terms and provisions contained in this
Agreement on behalf of yourself or the
corporation, partnership, or other legal entity
that will be using the Services. By accepting
this Agreement, you represent that you
are:
(A) eighteen (18) years of age or older,
or twenty-one (21) years of age or older in
places where eighteen (18) years of age is not
the age of majority; and
(B) if applicable, you are authorized to sign
for and bind the corporation, partnership, or
other legal entity that will be using the
Services.
2.6 User Accounts or User Accounts may not
be transferred or sold to another party. If you
are registering as a business entity, you
represent that you have the authority to bind
the entity to this terms and provisions
contained in this Agreement.
2.7 You agree to comply with all applicable
local, state, federal, and international laws
and regulations related to use of the
Services.
2.8 You may not use the Services to engage in
fraud or other illegal activity, or to infringe
the intellectual property rights of SpicyMatures
or third parties. If you believe that a User of
this Services has infringed on materials
protected by copyright, trademark, or patent
law, contact spicymatures@mail.com.
2.9 You agree to comply with the terms and
provisions of all agreements you have with any
third parties, as such terms and provisions
relate to use of the Services.
2.10 In consideration for the Services to be
provided by SpicyMatures to User hereunder, User
agrees to comply with, and SpicyMatures will
invoice User in accordance with, the applicable
SpicyMatures Price List, the terms and
provisions of which are incorporated herein by
reference. A current version of the SpicyMatures
Price List for any respective SpicyMatures site
is maintained at the respective SpicyMatures
site URL.
2.11 Except as the Parties specifically agree in
writing, You will be solely responsible for the
selection, implementation, and performance of
all third party equipment, software, and
telecommunication equipment and services,
including without limitation, Internet email
connectivity and Internet services used in
connection with the Services. You are
responsible for ensuring that the email system
and computer with which you choose to operate
the Services and products thereof, including
without limitation, data or information
generated by or resulting from the operation of
the Services, meets SpicyMatures' minimum
standards for interoperability, including
without limitation, processing speed, memory
requirements, choice of email server and client
software, and use of dedicated Internet access
for accessing Internet email.
2.12 User Accounts allow trial access to limited
and restricted Services and Content. Unlimited
and unrestricted access to the Services and
Content requires an upgrade to a Full User
Account according to the monthly fee schedule.
TRIAL ACCESS USER ACCOUNTS WILL ONLY ALLOW
ACCESS TO A LIMITED AREA OF THE SITE. IN ORDER
TO ACCESS THE FULL AMOUNT OF SERVICES AND
CONTENT AVAILABLE WITHIN THE SITE, USERS MUST
UPGRADE TO A FULL USER ACCOUNT.
- User Materials
3.1 User Materials, or any items included
therein:
(A) will not be false, inaccurate, or
misleading;
(B) will not be fraudulent or involve the sale
of counterfeit or stolen items;
(C) will not infringe any third party's
intellectual property, copyright, patent,
trademark, trade secret, publicity rights,
privacy rights, or other proprietary
rights;
(D) will not violate any local, state, federal,
or international law or regulation, including
without limitation, those governing export
control, consumer protection, unfair
competition, anti- discrimination, false
advertising, deceptive practices, or securities
transactions;
(E) will not be defamatory, libelous, unlawfully
threatening, or unlawfully harassing;
(F) will not be obscene, contain child
pornography, harmful to minors, or be
distributed to people not legally permitted to
receive such content;
(G) will not create liability for SpicyMatures
or cause it to lose, in whole or in part, the
Services, its Internet Service Provider, hosting
server, or other suppliers;
(H) will not violate the terms and provisions of
any agreements you have with any third parties
as such relate to your use of the Services;
and
(I) will not contain any virus, Trojan Horse,
worm, time bomb, cancelbot, robot, spider,
monitor, or other computer programming routines
that are intended to damage, detrimentally
interfere with, surreptitiously intercept,
record, or expropriate any system, data, or
personal information.
3.2 You will only use the Services solely for
purposes related to the Services.
3.3 By entering into this Agreement you grant
SpicyMatures a non-exclusive, worldwide,
perpetual, irrevocable, royalty-free,
sublicensable (through multiple tiers) right,
including a waiver of any applicable moral
rights, to exercise the copyright and publicity
rights you have in your User Materials, in any
media now known or later developed, solely for
purposes related to providing the Services. You
represent and warrant that you have the
authority to grant such license and that the
holder of any intellectual property or other
proprietary rights in your User Materials has
licensed, assigned, or waived such holder's
rights to the extent necessary to grant the
license.
3.4 Any communications or materials you transmit
to SpicyMatures by electronic mail or otherwise
may be used by SpicyMatures, its affiliates, or
licensors for any purpose, including without
limitation, reproduction, disclosure, display,
performance, transmission, publication,
broadcast, and posting. Furthermore,
SpicyMatures and its affiliates and licensors
are free to use any ideas, concepts, know-how,
hypothesis, premise, or technique contained in
any such communication for any purpose
whatsoever, including without limitation,
developing, manufacturing, and marketing
products or services.
3.5 SpicyMatures reserves the right to access,
monitor, remove, or disable access to any User
Materials at any time in its sole and absolute
discretion.
- Warranty Disclaimer
4.1 EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE IN
THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE THAT
USE OF THE SERVICES, SERVICES, SITE, CONTENT, OR
ANY MATERIALS CONTAINED THEREIN OR CONSTITUTING
A PART THEREOF ARE AT YOUR OWN RISK AND THAT
SpicyMatures, ITS AFFILIATES, SpicyMaturesS, AND
SUPPLIERS PROVIDE THE SERVICES AND CONTENT "AS
IS" AND "AS AVAILABLE", WITHOUT ANY EXPRESS,
IMPLIED, OR STATUTORY WARRANTIES,
REPRESENTATIONS, ENDORSEMENTS, OR CONDITIONS.
SpicyMatures, ITS AFFILIATES, SpicyMaturesS, AND
SUPPLIERS SPECIFICALLY DISCLAIM, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ALL
WARRANTIES, INCLUDING WITHOUT LIMITATION:
(A) ANY IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS
FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT;
(B) THAT THE SERVICES, CONTENT, OR ANY MATERIALS
CONTAINED THEREIN OR CONSTITUTING A PART THEREOF
WILL MEET ANY REQUIREMENTS OR WILL BE AVAILABLE,
ACCURATE, RELIABLE, CORRECT, USEFUL, TIMELY,
UNINTERRUPTED, SECURE, OR FREE FROM DEFECTS OR
ERROR, INCLUDING WITHOUT LIMITATION,
TRANSMISSION OR RECEPTION OUTAGES, BLOCKAGES,
WEAKNESSES, STATIC, VIRII, WORMS, TROJAN HORSES,
MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS OR
EVENTS;
(C) ANY IMPLIED WARRANTY ARISING FROM
COURSE OF DEALING OR USAGE OF TRADE; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR
REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE
NEGLIGENCE OF SpicyMatures, ITS AFFILIATES,
SpicyMaturesS, OR SUPPLIERS.
4.2 While reasonable efforts are made to ensure
the accuracy, correctness, and reliability of
the Services, SpicyMatures makes no
representations or warranties as to the
accuracy, correctness, and reliability of the
Services, which may be out of date. SpicyMatures
makes no commitment to update the
Services.
4.3 SpicyMatures does not guarantee continuous,
uninterrupted, or secure access to the Services,
and operation may be interfered with by numerous
factors beyond its control.
4.4 The Services is provided "as is" and "with
all faults" and the entire risk as to the
satisfactory quality, performance, accuracy, and
effort is with the User.
4.5 SpicyMatures may provide links to third
party sites. Links to third party sites are
provided solely as a convenience. Use of such
links will cause the User to leave the Services.
SpicyMatures does not review or control any
third party sites, and does not endorse, make
any representations regarding, and is not
responsible for any content, services,
information, software, products, or materials
found therein, nor any loss or results suffered
in relation to use of the third party site.
Access of any third party site via the
SpicyMatures domain or sub-domain is entirely at
the User's own risk. You hereby waive any and
all claims against SpicyMatures regarding the
inclusion of links to third party sites and your
use of those sites.
4.6 Some states and foreign countries do not
permit the exclusion or limitation of implied
warranties. Therefore, some or all of the above
limitations may not apply to the extent they are
prohibited or superseded by state or national
provisions. There may also be other legal rights
which vary from state to state.
4.7 No representative, agent, employee, or other
person is authorized to make any modifications,
extensions, or additions to any warranty or
disclaimer contained herein.
-
Limitation of Liability
5.1 EXCEPT AS SPECIFICALLY STATED IN THIS
AGREEMENT OR ELSEWHERE VIA THE SERVICES, OR AS
OTHERWISE REQUIRED BY APPLICABLE LAW, NEITHER
SpicyMatures NOR ITS SUCCESSORS, ASSIGNS,
AFFILIATES, SpicyMaturesS, OR SUPPLIERS, NOR ANY
OF THEIR RESPECTIVE OFFICERS, DIRECTORS,
EMPLOYEES, OR CONSULTANTS, OR ANY OTHER THIRD
PARTY MENTIONED AT THE SERVICES WILL BE LIABLE
FOR DAMAGES OF ANY KIND WHATSOEVER, INCLUDING
WITHOUT LIMITATION:
(A) THOSE RESULTING FROM LOST PROFITS, LOST DATA
OR BUSINESS INTERRUPTION;
(B) DIRECT, INDIRECT, COMPENSATORY,
CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL,
OR PUNITIVE DAMAGES ARISING OUT OF THE RELIANCE
ON OR USE, MISUSE, INABILITY TO USE, RESULTS OF
USE, OR PERFORMANCE OF THE SERVICES AND ANY
THIRD PARTY SERVICESS LINKED TO FROM THE
SERVICES, OR THE MATERIALS, INFORMATION,
MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS,
DEFECTS, DELAYS IN OPERATION, TRANSMISSION, OR
FAILURE THEREOF, OR LINKS CONTAINED AT ANY OR
ALL SUCH SERVICESS, WHETHER BASED ON WARRANTY,
CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND
WHETHER OR NOT ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES; OR
(C) ANY LOSSES, CLAIMS, DAMAGES, EXPENSES,
LIABILITIES, OR COSTS, INCLUDING LEGAL OR
ATTORNEYS' FEES, RESULTING DIRECTLY OR
INDIRECTLY OUT OF, OR OTHERWISE ARISING IN
CONNECTION WITH, ANY ALLEGATION, CLAIM, SUIT, OR
OTHER PROCEEDING BASED UPON A CONTENTION THAT
USE OR ACCESS OF THE SERVICES, CONTENT, OR ANY
MATERIALS CONTAINED THEREIN, INCLUDING CONTENT
AND MATERIALS SUPPLIED BY YOUR OR A THIRD PARTY,
INFRINGES THE COPYRIGHT, PATENT, TRADEMARK,
TRADE SECRET, CONFIDENTIALITY, PUBLICITY,
PRIVACY, OR OTHER INDUSTRIAL, CONTRACTUAL, OR
INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
THIS LIMITATION APPLIES TO THE ACTS, OMISSIONS,
NEGLIGENCE, AND GROSS NEGLIGENCE OF
SpicyMatures, ITS SUCESSORS, ASSIGNS,
AFFILIATES, SpicyMaturesS, OR SUPPLIERS,
TOGETHER WITH ALL OF THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, AND CONSULTANTS WHICH, BUT
FOR THIS PROVISION, WOULD GIVE RISE TO A CAUSE
OF ACTION AGAINST SpicyMatures IN CONTRACT,
TORT, OR ANY OTHER LEGAL DOCTRINE. YOUR SOLE AND
EXCLUSIVE REMEDY REGARDING ANY OF THE FOREGOING
IS TO DISCONTINUE USE OF THE SERVICES, CONTENT,
AND ANY MATERIALS CONTAINED THEREIN.
5.2 If your use of the Services results in the
need for servicing, repair or correction of
equipment or data, you assume all costs
thereof.
5.3 The aggregate liability of SpicyMatures, its
suppliers, or distributors to you or any third
parties in any circumstance is limited to
one-hundred United States dollars ($100).
5.4 Some United States states and foreign
countries do not permit the exclusion or
limitation of incidental or consequential
damages. Therefore, some or all of the
limitations above may not apply to you to the
extent they are prohibited or superseded by
state or national provisions. You may also have
other legal rights which vary from state to
state.
5.5 In jurisdictions not allowing the exclusion
or limitation of incidental or consequential
damages, the liability of SpicyMatures, its
successors, assigns, affiliates, licensors , and
suppliers, together with all of their respective
officers, directors, employees, and consultants
will be limited to the fullest extent permitted
by applicable law.
- Indemnification
6.1 You hereby agree to defend, indemnify, and
hold harmless SpicyMatures, its successors,
assigns, affiliates, licensors , and suppliers,
together with all of their respective officers,
directors, employees, and consultants from and
against any and all claims, civil and criminal
liability, judgments, penalties, taxes, damages,
and all costs and expenses, including without
limitation, those arising out of or relating to
your use, misuse, or inability to use the
Services or any materials, or any violation of
this Agreement or any local, state, or federal
law, regulation, or statute, or any rights of
any third parties, including without
limitation:
(A) any third party claim, action, or allegation
that the Services infringe or violates any third
party's copyright, patent, trade secret,
trademark, right of publicity, or right of
privacy, contains any defamatory content, or
violates any local, state, or federal law,
regulation, or statute, including without
limitation, any claim of personal injury or
product liability;
(B) any fraud, manipulation, or other breach of
this Agreement or other policies and agreements
by you;
(C) any third party claim, action, or allegation
brought against SpicyMatures arising out of or
relating to a dispute with you over the terms
and provisions of an agreement or related to the
purchase or sale of any goods or Services;
(D) your violation of any law or the rights of a
third party;
(E) your use, or SpicyMatures' provision, of the
Services or use of your User Account by any
third party. SpicyMatures will have the right to
participate in its defense and hire counsel of
its choice, at your expense. You will not settle
any action or claims on SpicyMatures' behalf
without the prior written consent of
SpicyMatures; and
(F) reasonable attorneys' fees resulting from
any breach of any warranty or representation
under this Agreement.
6.2 SpicyMatures reserves the right to
exclusively defend and control any
indemnification matters and you hereby agree
that you will fully cooperate and assist in any
such defense.
-
Deactivation, Suspension, and
Termination
7.1 Without limiting other remedies,
SpicyMatures, in its sole and absolute
discretion, may terminate this Agreement,
deactivate, suspend, or terminate your access to
the Services immediately without notice for any
reason, including without limitation:
(A) infringement of the intellectual property
rights of SpicyMatures or third parties;
(B) inability to verify or authenticate any
information you provide to us;
(C) breach of any terms of this Agreement or
documents incorporated by reference;
(D) breach of the applicable SpicyMatures Price
List; or
(E) the taking of any actions that, in the sole
judgment of SpicyMatures, may cause financial
loss or legal liability for you, SpicyMatures,
or other Users.
7.2 In the event SpicyMatures suspends or
terminates your access to the Services, you
acknowledge that you may be denied any further
access to any User Materials placed on any
SpicyMatures site or network location.
- Privacy
8.1 SpicyMatures is committed to protecting User
privacy and will only use and disclose User
information in accordance with the provisions of
this Agreement.
8.2 SpicyMatures collects information in
different ways throughout the various parts of
its Services. This information is used to
provide a customized experience as you use the
Services and, generally, do not share this
information with third parties. Personal
information will only be disclosed if your
permission is received beforehand or in very
special circumstances, such as when SpicyMatures
believes such disclosure is required by law or
other special cases.
8.3 Users may be asked to provide certain
personal information when they are assigned a
User Account, including name, address, telephone
number, email address, billing information, and
the type of computer being used to access the
Services. The personal information collected
from Users during the User Account assignment
process is used to manage User information and
for billing purposes related to SpicyMatures.
The personal information collected from Users is
used to enable delivery, operation, and
maintenance of the Services, including without
limitation, to provide accurate customer and
technical service, to respond to inquiries and
troubleshooting, to ensure proper delivery of
Content and billing information, to provide
specific services as requested or subscribed
for, to protect the security of the Services and
network resources, to ensure compliance with
local, state, or federal laws, regulations, or
statutes, to ensure compliance with this
Agreement and other policies governing use of
the Services, and to maintain records. This
information is not shared with third parties
unless your permission is received beforehand or
in very special circumstances, such as when
SpicyMatures believes that such disclosure is
required by law.
8.4 You must at all times maintain the
confidentiality of User Accounts and passwords.
If you are a corporation or other legal entity,
you may allow employees to use User Accounts and
passwords, provided that you are responsible for
all activity by such employees.
8.5 Permitting use of the Services by a third
party is prohibited and is a violation of this
Agreement. If there is a breach of security
through your User Account, you must immediately
change your password and also notify
SpicyMatures. You will be liable for any
unauthorized use of the Services until you
notify us of the security breach.
8.6 SpicyMatures may provide links to third
party sites where you can purchase products and
services or register to receive materials, such
as catalogs or new product and service updates.
The third party site may ask you to provide
personal information, such as name, address,
email address, phone number, and credit/debit
card information. If you complete an order for
someone else, such as an online gift order sent
directly to a recipient, the third party site
may ask you to provide personal information
about the recipient, such as the recipient's
name, address, email address, and phone number.
SpicyMatures has no control over any third party
site's use of any personal information you
provide to such third party site under any
circumstances. Please exercise extreme care when
providing personal information to a third party
site.
8.7 SpicyMatures may display online
advertisements and may share aggregated and
non-identifying information about Users
collected via the Services, as well as through
online surveys and promotions with these
advertisers. Additionally, in some instances,
this aggregated and non-identifying information
is used to deliver tailored advertisements.
SpicyMatures does not share personal information
about Users with these advertisers.
8.8 When Users send email inquiries to an email
address within the SpicyMatures.com domain, the
return email address is used to answer the email
inquiry. SpicyMatures does not use the return
email address for any other purpose and does not
share the return email address with any third
party under any circumstances.
8.9 SpicyMatures may periodically conduct User
surveys. Users are encouraged to participate in
these surveys because they provide important
information to assist in improving the Services.
Responses to such surveys will remain strictly
confidential and participation is
voluntary.
8.10 Information received from responses to User
surveys may be combined, or aggregated, with the
responses of other SpicyMatures Users to create
broader, generic results to the survey
questions. The aggregated information may be
used to improve the quality of the Services.
This aggregated, non-personally identifying
information may be shared with third
parties.
8.11 SpicyMatures does not to use or share the
personal information about Users in ways
unrelated to the ones described above without
also providing you an opportunity to opt out or
otherwise prohibit such unrelated uses. However,
SpicyMatures may disclose personal information
about Users, or information regarding your use
of the Services or third party sites accessible
through the Services, for any reason if
SpicyMatures believes, in its sole and absolute
discretion as permitted by law, that it is
legal, ethical, and reasonable to do so in order
to:
(A) satisfy laws, such as the Electronic
Communications Privacy Act, regulations, or
governmental or legal requests for such
information;
(B) disclose information that is necessary to
identify, contact, or bring legal action against
someone who may be violating the terms and
provisions of this Agreement;
(C) operate the Services properly; or
(D) protect the Services and its Users.
8.12 A "cookie" is a small data file that can be
placed on your computer's hard drive when you
visit certain Internet sites. SpicyMatures may
use cookies to collect, store, and sometimes
track information for statistical purposes to
improve the Services and to manage networks and
systems. If you have been assigned a User
Account, cookies are used to save your settings
and to provide customizable and personalized
Services. These cookies do not enable third
parties to access any personal information.
Additionally, be aware that if you visit third
party sites where you are prompted to log in or
that are customizable, you may be required to
accept cookies.
8.13 Advertisers, third parties, and partners
may also use their own cookies. SpicyMatures
does not control use of these cookies and
expressly disclaims responsibility for
information collected through them.
8.14 Protecting children's privacy is especially
important. It is SpicyMatures policy to comply
with the Children's Online Privacy Protection
Act of 1998 and all other applicable laws.
8.15 Please remember that any information you
may disclose in public areas of the Services or
the Internet, becomes public information. You
should exercise extreme care when deciding to
disclose personal information in these public
areas.
8.16 The Services has security measures in place
to protect the loss, misuse, and alteration of
the information under its control. While
SpicyMatures makes every effort to ensure the
integrity and security of its network and
systems, it cannot guarantee that these security
measures will prevent third-parties from
illegally obtaining this information.
- Confidentiality
9.1 Each Party will treat as strictly
confidential all Confidential Information of the
other Party, and will not disclose such
Confidential Information to any person or entity
or use such Confidential Information except as
contemplated herein or as otherwise authorized
in writing. Each Party will implement procedures
to prohibit the unauthorized disclosure or
misuse of the other Party's Confidential
Information by its agents, employees, and
representatives, and will not intentionally
disclose such Confidential Information to any
third party except for the purposes of this
Agreement, and subject to confidentiality
obligations similar to those set forth
herein.
9.2 Notwithstanding the above, neither
Party will have liability to the other with
regard to any Confidential Information of the
other which:
(A) was publicly available at the time it was
disclosed or becomes publicly available through
no fault of the receiver;
(B) was known to the receiver, without similar
confidentiality restriction, at the time of
disclosure;
(C) is disclosed with the prior written approval
of the discloser;
(D) is independently developed by the receiver
without any use of the Confidential Information;
or
(E) becomes known to the receiver, without
similar confidentiality restriction, from a
source other than the discloser without breach
of this Agreement by the receiver.
9.3 In addition, each Party will be entitled to
disclose the other's Confidential Information to
the extent required by any order or requirement
of a court, administrative agency, or other
governmental body, provided that the receiver
will provide prompt, advance written notice
thereof to the discloser and cooperate with the
discloser if the discloser elects to seek a
protective order or otherwise prevent such
disclosure.
9.4 Nothing in this Agreement will restrict each
Party's rights to assign or reassign its
employees, including without limitation those
who have had access to the other Party's
Confidential Information, to any project in its
discretion.
- Term
10.1 This Agreement will enter into force on the
date on which User manifest their consent by
selecting "I Agree" and clicking the appropriate
button below or by any access, viewing, or use
of the services, and will remain in force for
twelve (12) months thereafter. This Agreement
will automatically be renewed for additional
periods of twelve (12) months, unless it is
terminated by either Party giving one month
written notice prior to the expiration of the
initial or any additional term. SpicyMatures
will notify User of any changes in the terms of
this Agreement at least thirty (30) days prior
to the expiration of the initial or any
additional terms.
10.2 If either Party defaults in the
performance of its material obligations
hereunder and if any such default is not
corrected within thirty (30) days after it will
have been called to the attention of the
defaulting Party in writing by the other Party,
then the other Party, at its option, may, in
addition to any other remedies it may have,
thereupon terminate this Agreement by giving
written notice of termination to the other
Party
10.3 If any amounts due under this
Agreement are not paid when due, then
SpicyMatures may, at its option, without
limiting SpicyMatures' other available remedies
suspend its further obligations to User under
this or any other agreement between the Parties
and, if such amounts remain unpaid twenty (20)
days after receipt by User of written notice
from SpicyMatures that such amounts are overdue,
SpicyMatures may, in its sole and absolute
discretion, terminate this Agreement immediately
and without further notice.
-
Governing Law and Dispute Resolution
11.1 This Agreement will be interpreted,
construed and governed by the laws of the State
of Washington, United States of America, without
reference to its laws relating to conflicts of
law and not including the provisions of the 1980
United Nations Convention on Contracts for the
International Sale of Goods.
11.2 Venue for all disputes arising under this
Agreement will lie exclusively in Lynden,
Washington.
11.3 You agree that any and all disputes,
claims, or controversies arising from or
relating to this Agreement or the breach,
termination, or validity thereof which cannot be
resolved informally will be resolved
individually, without resort to any form of
class action or consolidation in any arbitration
with any dispute, claim, or controversy of any
other party, and will be submitted to binding
arbitration in accordance with the commercial
rules of the American Arbitration Association
then in effect.
11.4 The arbitration panel will consist of one
(1) neutral arbitrator if the amount in
controversy is less than twenty-thousand United
States Dollars ($20,000.00), otherwise the panel
will consist of three (3) neutral arbitrators,
each an active, licensed attorney with at least
five (5) years of experience in the primary area
of the law as to which the dispute
relates.
11.5 The arbitration will be in the English
language in Lynden, Washington.
11.6 The arbitration panel will determine issues
of arbitrability but may not limit, expand, or
otherwise modify the terms and provisions
contained herein.
11.7 Any award made pursuant to this
section:
(A) will be a bare award limited to a
holding for or against a Party and affording
such remedy as is deemed equitable, just, and
within the scope of this Agreement;
(B) will be without findings as to issues,
including without limitation, copyright,
trademark, or patent validity or infringement,
or a statement of the reasoning on which the
award rests:
(C) may, in circumstances other than
patent disputes, include injunctive
relief;
(D) will be made within four (4) months of
arbitration panel appointment; and
(E) may be entered in any court of competent
jurisdiction.
11.8 The requirement for arbitration will not be
deemed a waiver of any right of termination
under this Agreement and the arbitration panel
is not empowered to act or make any award other
than based solely on the rights and obligations
of the Parties prior to any such
termination.
11.9 Each Party will bear its own expenses, but
those related to the compensation and expenses
of the arbitration panel will be borne
equally.
11.10 The arbitration panel will not have
authority to award punitive or damages in excess
of compensatory damages, and each Party
irrevocably waives any claim thereto.
11.11 The Parties, their representatives,
participants, and the arbitration panel will
hold the existence, content, and result of the
proceedings in confidence.
11.12 Notwithstanding the foregoing,
SpicyMatures reserves and will have the sole and
exclusive right to commence and prosecute any
legal or equitable action or proceeding before
any court of competent jurisdiction, whether in
the United States or in a foreign country, to
collect any fees, recover damages for, or obtain
injunctive or other relief relating to the
Services, its operation, or intellectual
property if, in the sole opinion of
SpicyMatures, such action is necessary or
desirable.
(A) You hereby consent and agree to irrevocably
submit to the exclusive personal jurisdiction of
such courts, accept service of process by mail,
and irrevocably waive any available
jurisdictional, venue, or inconvenient forum
objections to such court.
(B) You hereby agree that such action will not
be deemed a waiver of the obligation to
arbitrate.
11.13 In the event you file an action contrary
to the foregoing provisions, SpicyMatures may
recover attorney's fees and costs up to
five-thousand Unites States Dollars
($5,000).
- General Provisions
12.1 No action of SpicyMatures, other than an
express written waiver or amendment, may be
construed as a waiver or amendment of any of
this Agreement.
12.2 Should any clause of this Agreement
be found unenforceable, wherever possible this
will not affect any other clause and each will
remain in full force and effect.
12.3 You agree that this Agreement and all
incorporated agreements may be automatically
assigned by SpicyMatures, in its sole and
absolute discretion, to a third party in the
event of a merger or acquisition.
12.4 Headings are for reference purposes only
and in no way define, limit, construe, or
describe the scope or extent of such
section.
12.5 Any failure to act with respect to a breach
of the terms and provisions of this Agreement
does not waive any right by SpicyMatures to act
with respect to subsequent or similar
breaches.
12.6 All provisions of this Agreement that by
their nature should survive termination will
survive termination, including without
limitation, provisions related to intellectual
property, warranty disclaimers, general
releases, limitations of liability, indemnity,
arbitration, governing law, and the general
provisions.
12.7 You also may be subject to additional terms
and provisions that may apply when you use
affiliate or third party services, sites,
content, or software.
12.8 Should SpicyMatures prevail in any action
or proceeding to enforce rights under this
Agreement, it will be entitled to recover its
costs and attorneys' fees from you.
12.9 You agree that you are subject to the terms
and provisions contained in this Agreement and
any additional policies applicable to the
Services, which may be posted from time to time.
All such posted policies or rules are
effectively immediately upon posting and are
hereby incorporated by reference into this
Agreement.
12.10 The provisions of this Agreement will be
binding upon and will inure to the benefit of
the Parties, their heirs, administrators,
successors, and assigns.
12.11 You may not assign this Agreement or the
rights and obligations hereunder to any third
party under any circumstances.
12.12 You will be solely responsible for all
costs and expenses incurred arising out of or
relating to this Agreement.
12.13 You acknowledge and agree that if you are
located in any United States or international
jurisdiction where any common, statutory,
regulatory, codified, or other law, rule, or
regulation makes accessing the Services or any
materials contained therein inappropriate,
illegal, or subject to consents or permissions
that you have not obtained, or voids this
Agreement in whole or in part, then you are not
authorized to access the Services or any
materials contained therein.
12.14 The Services contain features that may
allow User to collect data from, control, or
monitor computers running the Services. User
hereby agrees to hold SpicyMatures harmless from
and against any damages, claims, losses,
settlements, attorney's fees, and other expenses
related to any such activities.
12.15 User acknowledges and agrees that the
Services are not intended for use with any high
risk or strict liability activity and
SpicyMatures makes no warranty and will have no
liability arising from any use of the Services
in any high risk or strict liability
activities.
12.16 User acknowledges that the laws and
regulations of the United States restrict
certain export and re-export of commodities and
technical data of United States origin,
including the Services. User agrees that it will
not export or re-export the Services in any
form.
12.17 The Section headings in this Agreement are
solely for convenience and will not be
considered in its interpretation. Any applicable
SpicyMatures Price List is incorporated herein
as if set forth herein in full. This Agreement
has been reviewed and negotiated by the parties,
and each party has had the opportunity to review
this Agreement with counsel of its own choosing.
Accordingly, this Agreement will not be
construed strictly for or against either party.
Pronouns used in this Agreement will be
construed to include the masculine, feminine or
neuter, as the identity of the antecedent may
require.
12.18 Each Party acknowledges that its material
breach of this Agreement including, without
limitation, unauthorized disclosure or use of
the other Party's Confidential Information, will
cause irreparable harm and significant injury to
the Party which may be difficult to ascertain
and that a remedy at law would be inadequate.
Accordingly, each Party agrees that the other
Party will be entitled to immediate injunctive
relief to enforce obligations under this
Agreement in addition to any other rights and
remedies it may have at law or in equity.
-
Revision, Amendment, and Notice
13.1 SpicyMatures reserves the right to amend or
revise this Agreement and any terms and
provisions incorporated by reference herein at
any time and in any manner. Amended or revised
terms and provisions will be effective
immediately. Users will be notified of any such
revision or amendment as provided herein. This
Agreement may not otherwise be amended or
revised except in a writing signed by both
parties.
13.2 SpicyMatures reserves the right to revise
the Services, Content, information, materials,
and available contractual license terms featured
via the Services without notice.
13.3 Except as explicitly stated otherwise, any
notice required according to this Agreement will
be given as follows:
(A) Notice to SpicyMatures: via email to
spicymatures@mail.com.
(B) Notice to Users: via
https://tour1.SpicyMatures.com/terms.html or
email to the address provided during the
registration process.
13.4 Notice will be deemed given twenty-four
(24) hours after any HTTP document is posted or
after any email is sent, unless the sending
Party is notified that the email address is
invalid. Alternatively, notice may be sent via
reputable carrier to the address provided to
SpicyMatures during the registration process. In
such case, notice will be deemed given three (3)
days after the date sent.
13.5 The designated agent for service of notices
pursuant to the Digital Millennium Copyright Act
is as follows:
SpicyMatures
Attn: legal department
spicymatures@mail.com
with a courtesy copy to legal counsel for
SpicyMatures:
Chad L. Belville, Attorney at Law
5400 South Lakeshore Drive Ste 588
Tempe, AZ 85181
480-496-1488 fax
spicymatures@mail.com
- General Release
14.1 In the event that you have a dispute with
one or more Users or users of third party sites,
you release SpicyMatures, its successors,
assigns, affiliates, licensors , and suppliers,
together with all of their respective officers,
directors, employees, and consultants from
claims, demands and damages, both actual and
consequential, of every kind and nature, known
and unknown, suspected and unsuspected,
disclosed and undisclosed, arising out of, or in
any way connected with such disputes.
14.2 SpicyMatures does not control the
information provided by other Users or users of
third party sites that is made available through
the Services. You may find other Users'
information to be offensive, harmful,
inaccurate, or deceptive. Please use caution,
common sense, and practice safe online behavior
when using the Services. Please note that there
are also risks of dealing with underage persons
or people acting under false pretense.
Additionally, there may also be risks dealing
with international trade and foreign
nationals.
14.3 If you are a California resident, you
waive California Civil Code 1542, which states:
"A general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing the
release, which if known by him must have
materially affected his settlement with the
debtor."
-
No Relationship or Agency
15.1 No agency, partnership, joint venture,
employee-employer, or franchisor-franchisee
relationship is intended or created
herein.
- Force Majeure
16.1 Neither you nor SpicyMatures will be 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 the affected Party's
reasonable control that it is unable to overcome
through the exercise of commercially reasonable
diligence. If any force majeure event occurs,
the affected Party will give written notice to
the other Party and will use commercially
reasonable efforts to minimize the impact of the
event.
- Severability
17.1 If any court or other tribunal of competent
jurisdiction hereof holds any term, clause, or
provision of this Agreement invalid or
unenforceable, then such term, clause, or
provision will be eliminated, severed, or
limited to minimum extent necessary such that
this Agreement will otherwise remain in full
force and effect.
- Entire Agreement
18.1 This Agreement and the terms, clauses, and
provisions hereof, as well as those incorporated
by reference, constitutes the entire
understanding and agreement of the Parties, and
revokes and supersedes all prior oral or written
agreements between SpicyMatures and the User and
is intended as a final expression of their
Agreement.
18.2 You agree that you are not entering into
this Agreement in reliance on any statements,
representations, or promises other than those
contained herein.
18.3 This Agreement will take precedence over
any other documents, incorporated herein or
otherwise, which may conflict with this
Agreement.
18.4 This Agreement will not be modified or
amended except in writing signed by the Parties,
specifically referring to this Agreement.
