"PROMO-PAK" - WEBMASTER LIMITED COPYRIGHT LICENSE
READ THE FOLLOWING CAREFULLY:
THIS WEB SITE CONTAINS EXPLICIT ADULT CONTENT. YOU MUST BE A WEBMASTER OF THE FULL AGE OF MAJORITY IN YOUR JURISDICTION AND APPROVED IN ADVANCE BY DAWNSPLACE.COM TO ACCESS, VIEW AND USE THE CONTENT CONTAINED ON THIS WEB SITE. BY CLICKING "ACCEPT", YOU AGREE TO THE TERMS AND CONDITIONS OF THIS LEGAL CONTRACT WHICH IS A LIMITED LICENSE GRANTING YOU ACCESS AS A WEBMASTER BUT NO OWNERSHIP TO ONE OR MORE PROMO-PAKS DESIGNED TO PROMOTE DAWNSPLACE.COM. THW PROMO-PAK AND ALL CONTENT IS SUBJECT TO COPYRIGHT. THIS CONTRACT LIMITS THE LIABILITY OF DAWNSPLACE.COM.
Purpose of this Contract: The purpose of this Contract is to grant you a limited license and limited and specified permission (as detailed below) to download and use, subject to this Contract, one or more Promo-Pak's (the "Promo-Pak"), which is or are a collection of copyrighted images and related content designed to promote the Web site owned by Dawn's Place and located at WWW.DAWNSPLACE.COM (the "Web Site"), while limiting the liability of Dawn's Place.
2. Your Warranty and Representations to Dawn' Place: You warrant and represent, knowing that Dawn' Place is relying on such warranty and representation in entering into this Contract with you, that you are of full legal capacity and of the full age of majority in the jurisdiction in which you reside, and that you are in any event of the full age of eighteen years of age or older, and that you will conduct yourself in accordance with this Contract.
3. Agreement: In consideration of Dawn's Place granting you permission to download and use the Promo-Pak, and in consideration of the benefits to flow to you thereby, you freely enter into this Contract and agree to follow all the rules and regulations set by Dawn' Place with respect to Promo-Pak's from time to time, which rules and regulations are currently as set out in this Contract. Downloading and use of the Promo-Pak will constitute deemed acceptance of the terms of this Contract.
4. Your Conduct: You agree that at all times:
a) You will use the Promo-Pak only for the purposes stated in this Contract and only as expressly agreed by Dawn's Place. Any other use will constitute breach of contract and copyright infringement, as well as other possible illegal conduct.
b) You may copy the Promo-Pak to one computer server owned and/or controlled by you and make the Promo-Pak available to users of the Internet accessing the Server for download, subject to the provisions of this Agreement. You may copy the Promo-Pak to other Servers only with the permission of Dawn's Place, provided that you may copy the Promo-Pak to more than one Server for back-up or mirroring purposes. In no event will the Promo-Pak be copied to a Server accessible from the Internet other than by use of a Domain Name registered with you, or the company for which you are an authorized agent, as the stated registrant, via one or more Internet Protocol ("IP") addresses configured to point to and be associated with such Domain Name. c) In all cases, access to the Promo-Pak will be available only subject to a click-through agreement, or an agreement confirmed by a similar mechanism to a click-through screen, on terms and conditions provided by Dawn's Place in the Promo-Pak, or otherwise as directed by Dawn's Place. Under no circumstances will you allow or provide access to the Promo-Pak to any person under the full age of 18 years or the age of majority in their jurisdiction, whichever is older.
d) The Promo-Pak is subject to copyright and other intellectual property rights of Dawn' Place or its licensors, all rights reserved. Any use other than as stated in this Contract is forbidden and all rights are reserved.
e) You will not alter, modify, crop or otherwise change the appearance and features of any image, whether still or moving, in the Promo-Pak, or edit, alter or modify the content of any text in the Promo-Pak.
f) The Promo-Pak and any and all of its contents are not for resale by you or anyone without the consent of Dawn's Place, but are to be made available on a gratuitous basis for download for promotional purposes. In no event will you include the contents of the Promo-Pak, or any portion thereof, in any material sold for money or any other valuable consideration, whether as part of membership or subscriber content on a Web site or otherwise. Other than the foregoing, you will not copy, publish, distribute or disseminate the Promo-Pak, or any of its contents, in whole or in part, other than as permitted in this Contract, to any third party under any circumstances, including but not limited to postings on UseNet, News Servers, Bulletin Boards, IRC, web sites, “Clubs”, Chat, or by similar or analogous means, as well as by peer to peer or similar file sharing technologies, whether via a central server or otherwise. Such distribution shall constitute illegal and possibly criminal activity under the laws of most countries. g) You will not divulge your user name, password or other account information to anyone. You agree that Dawn' Place may track, record and archive your IP address, ISP and other information in order to prevent sharing and distribution of access information to this Web Site and the Promo-Pak(s).
h) You will not breach the laws or regulations of Canada, or the United States, or the country in which you reside or may be temporarily present, or of any other country reasonably connected with your use of this Web site; and,
i) You will not do anything, or omit to do anything, which would in any manner constitute a threat to the security or proper operation of this Web site and the business of Dawn' Place. 5. Waiver: You use this Web Site and the Promo-Pak(s) completely at your own risk. You agree that in no event shall Dawn' Place be held liable for any loss or damages, however caused, except as expressly provided in this Contract, even if the same is caused by the negligence of Dawn' Place or by the Promo-Pak(s) infringing the copyrights or other intellectual property rights of anyone.
6. Limitations. EXCEPT AS EXPRESSLY SPECIFICALLY PROVIDED IN THIS CONTRACT, THERE ARE NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR COVENANTS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, GIVEN BY DAWN'S PLACE OR AFFECTING ANYTHING TO BE DELIVERED BY DAWN'S PLACE UNDER THIS CONTRACT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU HEREBY WAIVE AND DAWN'S PLACE HEREBY DISCLAIMS ANY WARRANTY OR CONDITION OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT DEROGATING FROM ANY OTHER LIMITATION OF LIABILITY CONTAINED IN THIS AGREEMENT, YOU AGREE THAT THE AGGREGATE OF ALL LIABILITY ON THE PART OF DAWN'S PLACE FOR OR BREACH OF ANY CONDITION OR WARRANTY CONTAINED IN THIS CONTRACT OR OF ANY OTHER PROVISION OF THIS CONTRACT OR OF ANY AGREEMENT CONTEMPLATED BY THIS CONTRACT OR ANY OTHER BREACH GIVING RISE TO LIABILITY, INCLUDING A BREACH OF A CONDITION OR FUNDAMENTAL TERM OR FUNDAMENTAL BREACH OR BREACHES OR IN ANY OTHER WAY ARISING OUT OF OR RELATED TO THIS CONTRACT OR ANY AGREEMENT CONTEMPLATED BY THIS CONTRACT FOR ANY AND ALL CAUSES OF ACTION WHATSOEVER, REGARDLESS OF THE FORM OF ACTION (INCLUDING BREACH OF CONTRACT, STRICT LIABILITY OR TORT INCLUDING NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY), SHALL BE LIMITED TO YOUR ACTUAL DIRECT PROVABLE DAMAGES IN AN AMOUNT NOT TO EXCEED AN ALL INCLUSIVE AND ONE TIME ONLY PAYMENT OF ONE HUNDRED DOLLARS ($100.00) IN CANADIAN CURRENCY. YOU AGREE THAT, EVEN IF DAWN'S PLACE HAS BEEN ADVISED BY YOU OF THE POSSIBILITY OF SUCH DAMAGES, OR SUCH DAMAGES ARE FORESEEABLE, IN NO EVENT WILL DAWN'S PLACE BE LIABLE FOR DAMAGES IN THE NATURE OF PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST BUSINESS REVENUE, LOST PROFITS, FAILURE TO REALIZE EXPECTED REVENUE, FAILURE TO REALIZE EXPECTED WEB OR INTERNET TRAFFIC, LOSS OF DATA, LOSS OF EXPECTED REVENUE, LOSS OF INFORMATION OR PROGRAMS, DAMAGE TO COMPUTERS OR NETWORKS, DAMAGES FROM BREACH OF PRIVACY AND SIMILAR PERSONAL RIGHTS, DAMAGES FROM INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, LOSS OF BUSINESS OPPORTUNITY, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER DAMAGES WHATSOEVER OR ANY CLAIM AGAINST YOU BY ANY OTHER PARTY. YOU AGREE THAT IN NO EVENT WILL THE DIRECTORS, OFFICERS, EMPLOYEES, OR SHAREHOLDERS OF DAWN'S PLACE BE LIABLE TO YOU FOR ANY DAMAGES. THESE LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS HEREIN PROVIDED SHALL ENURE TO THE BENEFIT OF DAWN'S PLACE AND ITS SUB-CONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS AND EMPLOYEES.
7. Disclaimer: DAWN' PLACE DOES NOT WARRANT THAT THIS WEB SITE WILL OPERATE ERROR-FREE OR THAT IT AND THE PROMO-PAK(S) ARE OR WILL BE FREE OF COMPUTER VIRUSES, TROJAN HORSES, OR OTHER HARMFUL CONTENT, DEVICES OR PROGRAMS. THIS WEB SITE AND THE PROMO-PAK(S) ARE PROVIDED ON AN "AS IS" BASIS WITHOUT ANY WARRANTIES OR CONDITIONS OF ANY KIND. DAWN' PLACE MAKES NO WARRANTY OR REPRESENTATION OF NON-INFRINGEMENT.
8. Indemnity. You agree to indemnify and hold Dawn's Place harmless from and against any loss, cost, expense or damage resulting from your use of the Prom-Pak, and for any damages sustained should you breach any provision of this Contract, including but not limited to your warranties and representations and any breach by you of the copyrights and other intellectual property rights of Dawn' Place.
9. Injunctive and Similar Relief: You agree that any breach by you of this Contract will not be fully compensable in damages and you therefore agree that Dawn' Place shall be entitled to immediate equitable, injunctive and other similar relief against you.
10. Copyright and Ownership Notices: You will post, prominently display and continuously maintain in place during the term of this Contract any and all copyright and other ownership notices, as well as any and all other legal notices, that may be required by Dawn's Place.
11. Trade-marks: Dawnsplace.com, Dawn's Place and all associated designs, logos and graphics, are trade-marks and are the exclusive property of Dawn's Place LLC, all rights reserved.
12. Adult Content: You acknowledge that you have been warned that this Web Site and the Promo-Pak(s) contain content material of an adult and explicitly sexual nature. You freely accept all responsibility for your own actions and all legal risk in accessing, downloading, copying, publishing and distributing the Promo-Pak(s) and all contents and materials therein.
13. Grant of Limited License: Dawn' Place grants to you a non-exclusive, limited and revocable license to download and use the Promo-Pak(s) as provided herein. The contents of the Promo-Pak(s) may include images, photos, text, logos, graphics, animations, videos, films, and any and all types of multimedia. 14. Retention of Rights: All right, title and interest, including but not limited to all copyrights in and to the Promo-Pak(s) and all contents shall remain with and be the exclusive property of Dawn' Place. You do not own the Promo-Pak(s) or their contents. You agree to abide by the copyright law and all other applicable laws of Canada, the United States and other countries which are signatories to international treaties and conventions protecting content and software.
15. Non-Assignment by You: You may not assign this License and Contract. It is and shall remain personal to you.
16. Termination: Dawn' Place may terminate this Contract and the license contained herein at any time upon notice to you and may act unreasonably in so doing, in its absolute discretion. Upon termination, however caused, you will delete and/or destroy all copies of the Promo-Pak(s) in your possession or control and will disable access to such Promo-Pak(s) on all Servers and to any computer or Web site under your ownership, direction or control. You may terminate this License only by advising Dawn' Place that you wish to do so and confirming in writing or by email that you have deleted all copies of the Promo-Pak(s), that you retain no copies thereof, in whole or in part, and in any media, tangible or otherwise, and that you have complied with all provisions of this paragraph.
17. Entire Agreement: Dawn's Place may impose limitations and policies from time to time, including initially, on your use of the Promo-Pak or Promo-Paks which form the subject of this Agreement, and may do so by email or other correspondence, in which case such email or other correspondence will form part of this Contract. Other than the foregoing, this document sets forth the entire agreement, contract and understanding between you and Dawn' Place and merges all prior representations made or documentation provided, including anything contained in or on this Web Site or in the Promo-Pak(s), and Dawn' Place shall not be bound by any conditions, definitions, warranties, understandings or representations with respect this Contract other than as expressly provided herein.
18. Governing Law: During the performance of this Contract the parties will have extensive connection with the Province of Alberta, Canada and this shall be deemed a contract made in Alberta. This Contract and License shall therefore in all respects be governed by the laws of the Province of Alberta and the laws of Canada in effect in the said Province at the time. Provided that nothing contained in this section shall prevent Dawn' Place from commencing an action in any court of competent jurisdiction in order to seek damages and/or equitable relief against you for breach of this Contract, You agree that any and all disputes will be adjudicated only by the courts of Alberta. You expressly submit to and attorn to the jurisdiction of such courts, and you undertake and agree to bring no complaint and file no action in any other Court whatsoever.
19. Severance and Enurement: Should any portion or portions of this Contract be held by a Court of competent jurisdiction to be unenforceable, then such portion or portions shall be severed from this Contract, and the remaining portions of the Contract shall be enforced. This Contract shall enure to the benefit of the heirs, executors, administrators and assigns of you and Dawn' Place.DAWNSPLACE.COM (Operated by Dawn's Place Lld, an Alberta Corporation) ("Dawn's Place")