Here Media User Agreement
Last revised: September 21, 2009
Your use of sites operated or services performed by Here Media Inc. (including
its subsidiaries, "Here Media" or “we” or “us”) constitutes your
acceptance of these terms of service, as well as the terms and conditions
contained in the Privacy
Policy and the Community
Guidelines.
Acceptance of Terms
This User Agreement (the "Agreement") applies to all products and
services offered by us through any of our properties, including heremedia.com, gay.com,
advocate.com, out.com, and any country-specific or foreign language versions
thereof (collectively, the "Network"). In addition, when using
particular Network services, you will be subject to any guidelines or rules
applicable to such services that may be posted from time to time. All such
guidelines or rules are hereby incorporated by reference into this Agreement. By using the Network, you are stating that you
understand and agree to be bound by the terms and conditions of this agreement.
If you disagree with anything in this agreement, please do not use the Network.
You agree that we may change the terms and conditions of this Agreement at any
time by posting such changes on the Network and that your continued use of the
Network after any such posting will constitute your acknowledgment and
acceptance of the revised terms and conditions.
Registration Obligations
To use the Network, you may not have to register to become a member
("Member"). As a Member, however, you will have access to various
services to which non-Members do not have access, some of which will enable you
and other Members to interact with each other. If you would like to register to
become a Member, please complete the membership registration form for the
appropriate Here Media property. You agree to (a) provide true, accurate,
current and complete information as prompted by the registration form and (b)
maintain and update such information to keep it true, accurate, current, and
complete at all times. You are responsible for maintaining the confidentiality
of any password and account and are fully responsible for all activities that
occur under your password or account. You agree to immediately notify us of any
unauthorized use of your password or account or any other breach of security.
If any information provided by you on the registration form is untrue,
inaccurate, not current, or incomplete, or if we have reasonable grounds to so
believe, we have the right to suspend or terminate your membership without any
right on your part for refund of any fees paid and to refuse to provide you
with any future membership. If we have reason to believe that you have registered
someone other than yourself, we will cooperate with any law enforcement
investigation that may result from such misrepresentations and shall have the
right, in our sole discretion, to disclose any information you provided to us
in connection with such registration. We make a good faith effort to prohibit
registration as a Member by, and will not knowingly collect or store personal
information from, children under the age of 13. In addition, please be aware
that we have created certain areas on the Network that contain adult or mature
content. You must be at least 18 years of age to access and view such areas.
Fees
We reserve the right at any time to charge fees for access to Network content
or services or to portions of the existing Network content or services or to
the Network as a whole. In no event will you be charged for access to any
Network content or service, or to the Network as a whole, unless we obtain your
prior agreement to pay such charges. If you do not consent to such charges,
however, you may not have access to paid content or services.
Modifications
We reserve the right to modify or discontinue, temporarily or permanently, the
Network (or any part thereof) with or without notice. You agree that we shall
not be liable to you or to any third party for any such action.
Network Rules
Following are some basic rules that apply to the Network and that you agree to
follow. If you violate any of the Network rules, or if we have reasonable
grounds to so believe, we have the right, in addition to pursuing any and all
legal remedies available, to deny you access to the Network, to suspend or
terminate your membership without any right of refund to you and to refuse to
provide you with any future membership. You agree not to use the Network to:
- upload, store, post, email
or otherwise transmit any: (a) material that is inaccurate, unlawful,
harmful, threatening, abusive, harassing, tortious,
defamatory, vulgar, obscene, libelous, invasive of another's privacy,
hateful, racist, bigoted or otherwise objectionable, (b) material that you
do not have a right to transmit under any applicable law or under
contractual or fiduciary relationships, (c) material that infringes any
patent, trademark, trade secret, copyright or other proprietary right of any
party, (d) advertising, promotional materials, junk mail, spam, chain
letters, pyramid schemes, or any other form of solicitation, except where
specifically permitted, or (e) material that contains software viruses or
any other computer code, files or programs designed to interrupt, destroy
or limit the functionality of any computer software or hardware or
telecommunications equipment;
- connect in an unauthorized
manner (i.e., by means other than the technology provided by us) to the
community environment we provide for use by our Members on the Network or
facilitate such unauthorized connections through the provision of software
or other computer code specifically designed to allow a user to make such
unauthorized connections to our community environment;
- copy, modify, create a
derivative work of, reverse engineer, reverse assemble or otherwise
attempt to discover any source code of the technology or any other
software we provide through the Network;
- impersonate any person or
entity or falsely state or otherwise misrepresent your affiliation with a
person or entity;
- forge headers or otherwise
manipulate identifiers in order to disguise the origin of any material
transmitted through the Network;
- disrupt the normal flow of
dialogue, cause a screen to scroll faster than other users of the Network
are able to type (e.g., "flooding"), or otherwise act in a
manner that negatively affects other users' ability to engage in real time
exchanges;
- interfere with or disrupt
the Network or servers, networking and computing equipment or networks
connected to the Network, or disobey any requirements, procedures,
policies or regulations of networks connected to the Network;
- initiate, facilitate,
participate in or distribute a denial of service attack, exploit any
documented or undocumented vulnerability in the Network and its component
networking or computing equipment, or otherwise initiate, facilitate, or
participate in any disruptive action aimed at the Network or the Internet
in general;
- try to gain access to areas
that are private to Here Media or to other Network users;
- violate any applicable
local, state, national or international law or regulation;
- stalk or otherwise harass
another;
- harm minors in any way,
including, without limitation, to establish unlawful contact with minors
(whether on or off the Network);
- collect, intercept or
harvest member names; collect, intercept or store personal data about
other users of the Network; or solicit or attempt to discover a user's
password, member name, or other registration or usage information without
the user's express knowledge and consent;
- engage in or run raffles,
lotteries, contests, sweepstakes or other games of chance;
- promote or provide
instructions or information about how to engage in illegal conduct or
commit illegal activities or activities intended to cause disruption to
the Network, promote physical harm or injury, or promote any illegal act
or act intended to cause harm or disruption to the Network or the Internet
in general;
- intentionally or
unintentionally violate any applicable local, state, national or
international law, including, but not limited to, regulations promulgated
by the U.S. Securities and Exchange Commission, any rules of any national
or other securities exchange, including, without limitation, the New York
Stock Exchange, the American Stock Exchange or the NASDAQ, and any
regulations having the force of law;
- provide material support or
resources (or to conceal or disguise the nature, location, source, or
ownership of material support or resources) to any organization(s)
designated by the United States government as a foreign terrorist
organization pursuant to section 219 of the Immigration and Nationality
Act; or
- store any information or use
any Web page or directory you create, including any member profile or
posting in or to a public area, on or through the Network as storage for
remote loading or as a door or signpost to another Web page, whether
inside or outside the Network.
You
acknowledge that we do not pre-screen material posted or transmitted on the
Network. In particular, we do not conduct
background checks or otherwise pre-screen members for felony or sex offense
convictions. Please take appropriate safety measures to increase awareness of
possible risks associated with meeting someone you have met through the use of
the network services. We and our designees shall have the right (but not
the obligation) in our sole discretion to review and edit, delete or refuse to
post any material submitted for display or placed on the Network, including but
not limited to messages, profiles, images, personals, and reviews. Without
limiting the foregoing, we and our designees shall have the right to remove any
material that violates this Agreement, that we believe in good faith may create
liability for us, or that we deem is otherwise objectionable. You acknowledge
and agree that we may preserve material and may disclose material if required
to do so by law or in the good faith belief that such preservation or
disclosure is reasonably necessary to: (a) comply with legal process; (b)
enforce this Agreement; (c) respond to claims that any material violates the
rights of third parties; or (d) in our sole judgment, protect the rights,
property, or our personal safety, our users and members or the public.
Privacy
Our Privacy Policy
states in full our policy regarding how we handle information that we
automatically collect about you or that you choose to submit to us.
Submissions
Through certain areas of the Network you may post,
upload or submit material ("Submissions") for viewing by others or
view Submissions of other users (e.g., communities, forums, personals, Member
profiles, discussion rooms or video conferencing rooms). By making a Submission,
you (a) automatically grant us and our affiliates and licensees the
royalty-free, perpetual, irrevocable, nonexclusive right and license to use,
reproduce, modify, adapt, publish, translate, publicly perform and display and
distribute the content of the Submission (in whole or in part) worldwide and/or
to incorporate it in other works in any form, media, or technology now known or
hereafter developed, (b) permit any other user of the Network to access, view,
store, or reproduce the Submission for that user's personal use, and (c)
represent and warrant that public posting and use of your Submission by us and
our affiliates and licensees will not infringe or violate the rights of any
third party.
Dealings with Advertisers
Your correspondence or business dealings with, or participation in promotions
of, advertisers found on or through the Network, including payment and delivery
of related goods or services, and any other terms, conditions, warranties or
representations associated with such dealings, are solely between you and such
advertiser. You agree that we shall not be responsible or liable for any loss
or damage of any sort incurred as the result of any such dealings or as the
result of the presence of such advertisers on the Network.
Links
Our provision of a link to any non-Network site or location is for your
convenience and does not signify our endorsement of such non-Network site or
location or its contents. We shall not be responsible for any information,
software, or links found at any non-Network site or location, or for any
transactions conducted at or through any linked non-Network site or location.
DISCLAIMER OF WARRANTIES
You expressly agree that your use of the
Network is at your sole risk. All materials, information, software, products
and services included in or available through the Network are provided on an
"as is" and "as available" basis. All such materials,
information, software, products and services are provided without, and Here
Media, its subsidiaries and licensors hereby expressly disclaim, any warranties
of any kind, either express, implied or statutory, including, without
limitation, any implied warranties of merchantability, fitness for a particular
use or purpose, title, or non-infringement. Here Media, its subsidiaries and
licensors do not represent or warrant that the network will function without
interruption, that the network is error- or defect-free, that any such defects
or errors will be corrected, or that the network and the server(s) that make
the network available are free of viruses or other harmful components. No
advice or information, whether oral or written, that you obtain from the
company, its subsidiaries, licensors or otherwise through your use of the
network shall create any warranty. Further, Here Media, its subsidiaries and
licensors do not warrant or represent that the use or the results of the use of
any materials, information, software, products or services included in or
available through the network will be correct, accurate, timely or reliable.
LIMITATIONS ON LIABILITY
In no event shall Here Media, its
subsidiaries or licensors, or any other person or entity involved in creating
or distributing the network be liable for any direct, indirect, incidental,
special or consequential damages, however arising and under any theory of
liability (including, without limitation, tort, including negligence and strict
liability, breach of contract or breach of warranty), that result from your use
of or inability to use the network, any changes to the network or this
agreement, unauthorized access to or alteration of your transmissions or data,
any material or data sent or received or not sent or received, or any
transactions entered into through the network. Here Media, its subsidiaries and
licensors, and any other person or entity involved in creating or distributing
the network are not responsible or liable for any threatening, defamatory,
obscene, offensive or illegal content or conduct of any other party or any
infringement of another's rights, including intellectual property rights. If
you are dissatisfied with the network, or any materials, information, software,
products or services included in or available through the network, your sole
and exclusive remedy is to discontinue using the network. The foregoing
limitations on liability shall be applicable even if the company or the
applicable third party knew or should have known of the possibility of such
damages and notwithstanding the failure of essential purpose of any limited
remedy. Some jurisdictions do not allow the exclusion or limitation of
incidental or consequential damages, so the above limitation or exclusion may
not apply to you.
INDEMNIFICATION
You agree to indemnify and hold Here
Media, its licensors and any other person or entity involved in creating or
distributing the Network, as well as each of their respective parents,
affiliates or subsidiaries and their respective directors, officers, employees
and agents, from and against any and all claims, liabilities, damages, losses,
costs, fees (including attorneys' fees) and expenses that such parties may
incur as a result of or arising out of your (or, in the case of Members, anyone
using your account's) use of, or conduct with respect to, the Network.
ALLOCATION OF RISK
You agree that the disclaimer of
warranties, limitations on liability, and indemnification provisions set forth
in this agreement represent an agreed-upon allocation of risk and form an essential
part of the basis of the bargain between you and Here Media, without which we would
not enter into this agreement or provide the network.
Proprietary Rights
You acknowledge and agree that all content and
materials available on or through the Network are protected by copyrights,
trademarks, service marks, patents, trade secrets, or other proprietary rights
and laws. You may print or download one copy of the materials or content on the
Network on any single computer for your personal, non-commercial use, provided
that such materials remain unaltered and are accompanied by a clearly visible
copy of any copyright or other proprietary notice appearing on such materials.
Otherwise, you may not republish, retransmit, reproduce or otherwise use the
materials or content. Systematic retrieval of data or other content from the
Network to create or compile, directly or indirectly, a collection,
compilation, database or directory without written permission from us is
prohibited. In addition, use of the content or materials for any purpose not
expressly permitted in this Agreement is prohibited. Except as expressly
authorized by us, you agree not to sell, license, rent, modify, distribute,
copy, reproduce, transmit, publicly display, publicly perform, publish, adapt,
edit, or create derivative works from such materials or content. To obtain such
authorization, contact the Here Media legal department by mail at:
Here Media
Attn: Legal Department
10990 Wilshire Blvd, Penthouse
Los Angeles, CA 90024
Removal of material for which copyright
infringement is claimed
Here
Media respects the intellectual property rights of others. Pursuant to Title 17
U.S.C. § 512, as amended by Title II of the Digital Millennium Copyright Act
(the "Act"), Here Media has implemented procedures for receiving
written notification of claimed copyright infringements and for processing such
claims in accordance with the Act. If you believe your work has been copied and
is accessible through the Network in a way that constitutes copyright
infringement, please fill out a Notice of Infringement Form and mail it to the
following agent of Here Media for notice of claims of copyright infringement:
Here Media
Legal Department
Attn: Copyright Administrator
10990 Wilshire Blvd, Penthouse
Los Angeles, CA 90024
The information requested by the Notice of Infringement Form substantively complies
with 17 U.S.C. § 512(c)(3)(A), which provides:
To be effective under this subsection, a notification of claimed infringement
must be a written communication provided to the designated agent of a service
provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf
of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or,
if multiple copyrighted works at a single online site are
covered by a single notification, a representative list of such works at that
site.
(iii) Identification of the material that is claimed to be infringing or to be
the subject of infringing activity and that is to be removed or access to which
is to be disabled, and information reasonably sufficient to permit the service
provider to locate the material.
(iv) Information reasonably sufficient to permit the
service provider to contact the complaining party such as an address, telephone
number, and if available, an electronic mail address at which the complaining
party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of
the material in the manner complained of is not authorized by the copyright owner,
its agent, or the law.
(vi) A statement that the information in the
notification is accurate, and under penalty of perjury, that the complaining
party is authorized to act on behalf of the owner of an exclusive right that is
allegedly infringed.
Notification from a copyright owner or from a person authorized to act on
behalf of the copyright owner that fails to comply substantially with the
provisions above shall not be considered as providing actual knowledge or an
awareness of facts or circumstances from which infringing activity is apparent.
Please provide a Notice of Infringement Form each time you wish to report
alleged acts of infringement. Please note that we will, in appropriate
circumstances, terminate the account of any Member who repeatedly posts
infringing material on the Network.
Choice of Law & Jurisdiction and Venue
You agree that the laws of the State of California and the United States will
apply to all matters relating to this Agreement, as they would to agreements
made and entered into entirely in California, by California residents,
notwithstanding your actual place of residence or domicile. You agree that all
lawsuits arising out of or relating to this Agreement shall be brought
exclusively in the Federal or State courts located in the Southern District of
California, Los Angeles County, and you hereby irrevocably submit to the
exclusive personal jurisdiction of such courts for such purpose.
General
This Agreement contains the complete and final statement of the understanding
between you and Here Media with respect to the subject matter of this Agreement
and supersedes any and all prior or contemporaneous negotiations, agreements or
communications, whether written or oral, between you and us concerning the
subject matter of this Agreement. If any provision of this Agreement is
rendered by a court or governmental agency of competent jurisdiction to be
invalid, illegal, or unenforceable, such invalidity, illegality or
unenforceability shall not affect the remainder of this Agreement, which shall
remain in full force and effect and be enforced in accordance with its
remaining terms. The waiver by us of a breach or default of any of the
provisions of this Agreement by you shall not be construed as a waiver of any
succeeding breach of the same or other provisions; nor shall any delay or
omission on the part of the Here Media to exercise or avail itself of any
right, power or privilege that it has or may have hereunder operate as a waiver
of any breach or default by you. You agree that, regardless of any statute or
law to the contrary, any claim or cause of action that you may have arising out
of or related to use of the Network or this Agreement must be filed within one
(1) year after such claim or cause of action arose or be forever barred. The
section titles in this Agreement are solely used for convenience and have no
legal or contractual significance. All provisions of this Agreement that, by
their nature, survive termination of this Agreement will survive termination including,
without limitation, the Acceptance of Terms, Network Rules, Submissions, Links,
Disclaimer of Warranties, Limitations on Liability, Indemnification, Allocation
of Risk, Proprietary Rights, Choice of Law & Jurisdiction and Venue and
General sections of this Agreement.