PLEASE READ THIS DOCUMENT CAREFULLY BEFORE YOU ACCESS THE SITE OR REGISTER AS A MEMBER OF THE SITE. BY ACCESSING THE SITE OR REGISTERING AS A MEMBER OF THE SITE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS AND CONDITIONS, PLEASE DO NOT ACCESS OUR SITE.
THE TERMS INCLUDE AN AGREEMENT TO ARBITRATE, AS DISCUSSED IN SECTION 17 (AGREEMENT TO ARBITRATE). UNLESS YOU OPT-OUT OF THE AGREEMENT TO ARBITRATE, YOU WILL BE REQUIRED TO RESOLVE ANY CLAIMS OR DISPUTES BETWEEN YOU AND Dating Kinky ON AN INDIVIDUAL BASIS THROUGH ARBITRATION.
1. Your Agreement
These Terms govern: (i) your use of the Website, (ii) use of the Facilities to provide Content to other Members and Site Visitors; and (iii) your use of Content accessed through the Site. Please read these Terms carefully; they impose legal obligations on you and on Dating Kinky, and establish our legal relationship. By accessing our Website or registering as a Member of the Site, you are acknowledging that you have read and understood these Terms and agree to be legally bound by them. To assist you in your understanding of these Terms, we have included a set of definitions, located in Section 26 (Definitions).
In addition, if you become a Member, during the registration process you will be prompted to click an “I Accept” button, which further confirms your agreement to be legally bound by these Terms.
By using this Site, and in addition to the other terms and conditions set forth in this Agreement, you represent and warrant as follows: (a) you are at least 18 years old; (b) you are not currently restricted from using the Site, or not otherwise prohibited from having an account with us; (c) you have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (d) you will not violate any of our rights or the rights of other Site users, including intellectual property rights such as copyright or trademark rights; (e) you agree to provide at your cost all equipment, software and internet access necessary to use the Site; (f) you have the right to submit any content that you post and provide to us and grant the licenses set forth herein; (g) we do not and will not need to obtain licenses from any third party or pay royalties to any third party in connection with your video and non-video content for any reason; (h) the content you submit does not infringe any third party’s rights, including intellectual property rights and privacy rights; and (i) the content you submit complies with all of the terms of this Agreement and all applicable laws.
You are only allowed to open one (1) Free Member account with us. You may, however, open multiple PLUS Member accounts.
3. Our Website
We provide a range of features for our Members as follows:
3.1 Our Website
We provide our Members with access to an online social network, which is designed to allow them to find and communicate with old and new friends, based on shared interests. Members use our Site primarily via Member “profiles,” which are personal web pages. As a Member, you can create a profile and, subject to certain content-related, bandwidth, and file-size restrictions, and you can include in your profile multimedia content including both photographs and a video (the “Profile”). Other Members then use your Profile to leave you messages (incorporating multimedia content, if they wish), to send you “instant messages,” and to create links to their own Profiles. Depending on the privacy controls you have set for your Profile, you have the ability to “open” your Profile not just to close friends, but to others, including all other Members.
Member exchanges via Profiles are supplemented by additional features of our Site, that allow Members to: (i) contribute to discussions, stories, and group message areas, and (ii) utilize other Facilities that we provide.
3.2 Summary of Site
3.3 Additional Guidelines
Dating Kinky may post additional guidelines on its Website relating to your use of the Site. You agree to adhere to, and to be bound by, all guidelines that Dating Kinky chooses to post on the Website. In the event that there is a conflict between these Terms and any guidelines that we post on our Site, these Terms shall control.
4. Registration Process; Membership Types
4.1 Registration Process; Password
4.1.1 Registration Process
4.1.2 Protecting your Password
Please keep in mind that we will treat anyone who uses your password as “you.” We will provide this user with all of the rights and privileges that we provide to you, and we will hold you responsible for the activities of a person using your password. Therefore, we recommend that you maintain your username and password in confidence, and that you refrain from disclosing this information to anyone who might “pretend” to be you with respect to the Facilities and your participation on our Website. We also ask that you notify us immediately if you suspect that someone is using your password in this manner.
4.2 Membership Types
4.2.1 Free Members
You can become a Free Member simply by completing Registration. Free Members have basic access to our Facilities. For example, Free Members can create profiles, message other members and access chat.
4.2.2 PLUS Members
After completing Registration and approval of your Profile by Dating Kinky, which approval may be granted or denied in Dating Kinky’s sole discretion, you can opt to become a PLUS Member by submitting payment to Dating Kinky pursuant to the guidelines posted on the Site. PLUS Members enjoy additional access to Features on our Site that are not available to Free Members.
4.2.3 Lifetime Members
Members may pay to become Lifetime Members. Lifetime Member accounts have no account renewal obligations and Lifetime Members are not required to pay Dating Kinky fees beyond those initially paid to Dating Kinky in order to obtain a Lifetime Member account. Lifetime Members are entitled to access our Site until the unlikely and unfortunate event that the Site is shutdown or made generally unavailable or the account is terminated pursuant to Section 10 (Monitoring of Facilities; Removing Postings). Dating Kinky will make commercially reasonable efforts to keep the Site continually active.
Certain Members have been selected to review and filter Visual Content as set out in Section 10.1 (Filters; Blocking and Removal of Content) and to monitor Chats (the “Moderators”). Dating Kinky reserves the right, in its sole discretion, to revoke the rights and obligations of Moderators. Moderators are treated as Lifetime Members for purposes of these Terms.
4.2.4 Charter Members
4.3 Site Visitors
Users who access our Site without becoming Members have very limited access to the Facilities that we provide and the Content posted on our Site.
5. Billing and Refunds
6. Limited Grant of Rights; Profile and Facilities
Our Website is designed to facilitate your interactions with other Members through the use of our Facilities and the creation of your Profile. The following specific provisions govern the creation, use, and treatment of: (i) Member Profiles, (ii) our Facilities; and (iii) the Content.
To allow you to interact with other Members and to participate in our social community, Dating Kinky has made available to you a range of facilities that allow you to interact with other Members via the: (i) Profile, (ii) discussions, (iii) Chats, (iv) writings, (v) photos, (vi) Kinks & Interests, (vii) instant messaging via text or video; and (viii) other facilities that we may make available from time to time (collectively, the “Facilities”). The Facilities format the Content, store the uploaded Content until it retrieves the Content at the request of other Members, at which point the Facilities transmit the Content to the requesting Member.
Members may post personal Visual Content that is only accessible to other Members (after said Members have been affirmatively given access from the uploading Member) via “private” photos. “Private” photos are intended to be uploaded personal Visual Content accessed and viewed by other Members in a secure, non-downloadable format.
6.2 Privacy, Your Profile, and Privacy Controls
To allow you greater flexibility in the information you include in your Profile, we provide you with privacy controls that allow you to control certain aspects of your Profile. You may, for example, “block” particular Members from accessing your Profile or contacting you through the Site. In addition, you may designate Visual Content as: (i) world, (ii) public, or (iii) private. Site Visitors, can view Visual Content marked “world,”. Visual Content designated as “public” can be generally accessed, Visual Content designated as “private” restricts those that may access your Visual Content to those that you affirmatively designate as having authorization.
Please choose carefully the information you post on your Profile and information that you provide to other Members. Your Profile is freely available to other Members, you MUST not include information in your profile that personally identifies you, such as your telephone number, street address, last name, email address, or any photograph or video that may allow other Members to determine your physical location. Additionally, link or references to other websites are forbidden in profiles, with the exception of a link to FetLife.com within the designed entry space.
6.3 Your Grant of Rights to Dating Kinky
Dating Kinky has established a host of Facilities to assist you in your efforts to interact with other Members. This section outlines the rights that Dating Kinky has in the Content.
6.3.1 Visual Content
You grant to Dating Kinky, pursuant to your intellectual property rights, only those limited rights that are necessary for Dating Kinky to assist you in your posting of Visual Content using our Facilities and to enhance the experience that users enjoy when accessing our Site. Please be aware that no compensation will be paid to you or any third party with respect to our use of your Visual Content under this grant.
6.3.2 Textual Content
You grant to Dating Kinky, pursuant to your intellectual property rights, a perpetual, non-exclusive, royalty-free, sublicensable right to use, copy, modify, adapt, display, perform, and distribute your Textual Content (the “Textual Content License”). Dating Kinky may, in its sole discretion, provide attribution should it exercise any of its rights pursuant to the Textual Content License.
6.4 Formatting; Visual Content Compatibility
In order to maintain the efficient operation of the Site, Dating Kinky implements certain format and file-size standards for visual Content uploaded by Members. By submitting Visual Content to our Site, you authorize Dating Kinky to convert the submitted Visual Content into a format and size that is compatible with the Site’s requirements (“Visual Content Formatting”). Visual Content Formatting is done solely to ensure technical compatibility between the uploaded Visual Content and our Site and does not have an impact on the subject matter of the Visual Content.
6.5 Your Grant of Rights to Other Members and Site Visitors
You grant to other Members, under your intellectual property rights, the right to access and view Content that you have posted solely for their personal, non-public use. Subject to the limitations set out in Section 10.1 (Filters; Blocking and Removal of Content), you have the option of restricting this grant by identifying particular Visual Content as “world,” “public,” or “private,” which is designed to prevent other Members from being allowed to access or view Visual Content that has been uploaded onto the Site unless first given permission by you. Please be aware that, depending on the Privacy Controls that you have selected, it may be possible for Site Visitors to view your Profile or the Content that you have uploaded onto the Site. If your Privacy Controls are set to allow this, then you will be deemed to have granted Site Visitors the same rights granted to other Members pursuant to this Section 6.5 (Your Grant of Rights to Other Members and Site Visitors). Nothing in these Terms shall be construed as giving other Members any rights other than those explicitly stated in this Section 6.5 (Your Grant of Rights to Other Members and Site Visitors).
6.6 Rights You Must Have in Your Content; Records
When you post Content on our Site through the Facilities, you represent and warrant: (i) that you hold all rights needed to grant requisite rights under Section 6.3 (Your Grant of Rights to Dating Kinky) and Section 6.5 (Your Grant of Rights to Other Members and Site Visitors), (ii) that you own the copyright in all Content subject to copyright protection (or have been given needed permissions by the copyright owner, or use the Content under “fair use” principles), (iii) that each person depicted in images, video, or identified in text in your Content (if any), has provided you with consent to use the Content as set forth in these Terms, (iv) that you are responsible for managing and editing the Visual Content; and (v) that you will maintain, if required by law, any records pursuant to 18 U.S.C. §2257 for Content that you upload onto the Site. You should seek independent legal counsel if you have any questions as to the rights and obligations that you have pursuant to this or any other section.
6.7 Compliance with FOSTA
You represent and warrant that you will not use the Site to engage in any activity that (i) promotes or facilitates prostitution, (ii) facilitates traffickers in advertising the sale of unlawful sex acts with sex trafficking victims, or (iii) may violate the Allow States and Victims to Fight Online Sex Trafficking Act (“FOSTA”). You further represent and warrant that you will defend, indemnify, and hold Dating Kinky and its subsidiaries, affiliates, officers, directors, agents, and employees harmless for claims, including reasonable attorneys’ fees, arising from any claim alleging that you have (i) promoted or facilitated prostitution, (ii) facilitated traffickers in advertising the sale of unlawful sex acts with sex trafficking victims, and/or (iii) violated FOSTA.
6.8 Advertisements and Profiles
You represent and warrant that you shall not use your Profile to: (i) advertise for, or make any reference to, any other website, (ii) sell any product or service, (iii) attempt to attract our Members or Site Visitors to any other website; or (iv) use any Textual Content for any commercial purpose without explicit written and granted permission from Dating Kinky, Inc.
6.9 Use of Profiles in Promotions
We believe that our Members’ own experiences on the Site can often act as the strongest promotion for the Site and our Facilities. To promote and illustrate the Site and our Facilities, therefore, we may wish to post on our homepage, and in other areas of the Site, Member profiles and other information that our Members provide to us and grant revocable, temporary consent to.
To this end, with consent, we provide promotions through social media with specific information from your profile, and an image from your profile may be displayed on our homepage. Moreover, if you create a public profile, then Visitors will have greater access to the content that you have placed on our Site. Please be aware that all Visitors will be able to view your Content if you optin to participate in: (i) the public profiles and (ii) give consent to social media promotions.
6.10 Termination of Rights; Survival
Dating Kinky expressly disclaims ownership in all Visual Content. You can request, and Dating Kinky will remove within a reasonable time, the Visual Content that you post on our Site. Any rights that you grant to Dating Kinky, Other Members, and Site Visitors in the Visual Content terminate upon your removal of the Visual Content from our Site. The Textual Content License continues in perpetuity.
7. Dating Kinky’s Grant of Rights to You
In this section, Dating Kinky gives Members the rights and privileges that they will need to participate in our Website via the Facilities.
7.1 Rights to Access and Participate in Facilities
Subject to your compliance with these Terms, Dating Kinky grants to you a limited, non-exclusive license to access and use the Facilities for your own personal, non-commercial purposes. This license is personal to you and may not be assigned or sublicensed to anyone else. You are solely responsible for the activity that occurs on your account and for the content you upload and, if applicable, you must keep your account password secure. Dating Kinky’s grant in the Facilities to you is limited to your personal use and solely to access the Content in connection with your rights and obligations set out in Section 6 (Limited Grant of Rights; Profile and Facilities) and Section 7 (Dating Kinky’s Grant of Rights to You). The Website may not be used in connection with any commercial endeavor except (i) those commercial endeavors set out in these Terms, and (ii) other commercial endeavors that we specifically consent to in writing.
7.2 Dating Kinky Ownership; Reservation of Rights
Dating Kinky Content means all content available on or through the Website – other than Content – including all information, software, artwork, text, video, audio, pictures, trademarks, trade dress, and other intellectual property found on the Website, or embodied in the Facilities or the content (“Dating Kinky Content”). Dating Kinky and its Licensors own all Dating Kinky Content. The Dating Kinky Content is protected by U.S. and international copyright, trademark, and other intellectual property laws, and Dating Kinky retains all rights with respect to the: (i) Dating Kinky Content, (ii) Website; and (iii) Facilities; except those expressly granted to you in these Terms. You agree not to use, duplicate, publish, display, distribute, modify, or create derivative works from Dating Kinky Content except as expressly allowed in Section 7.1 (Rights to Access and Participate in Facilities), unless specifically authorized in writing by Dating Kinky.
8. Community Guidelines
As a condition to your use of the Website, the Content, and the Facilities, you agree to comply with these Terms and to follow our community Guidelines as set out below. Under these Guidelines, you will not:
8.1 Upload, email or otherwise transmit any images, material, or other Content that is intentionally false, defamatory, threatening, harassing, intimidating, illegal, obscene, abusive, or otherwise in violation of any of the guidelines posted on our Site or in our Terms, or in any other way promotes racist, hateful, bigoted or otherwise harmful speech against another Member or group of Members.
8.2 Attempt to solicit Members directly.
8.3 Disseminate materials that impact or invade the privacy of others, such as photographs, video clips, sound recordings, personally identifiable information, or other materials that reveal personal, private or sensitive information about another person, without that person’s consent.
8.4 Infringe any third party’s copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy. No material may be transmitted over the Website without the copyright owner’s permission, or without a legitimate “fair use” justification for the transmittal.
8.5 Transmit materials that contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer-programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information, including but not limited to limiting the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, or interfere with the performance of, the Site.
8.6 Seek to use for financial gain the Website, related computer Facilities, or information available on the Website unless prior written authorization has been given by Dating Kinky.
8.7 Use the Website, or anything available on the Website, to artificially generate traffic or page links to a website or for any other purpose not expressly allowed under these Terms.
8.8 Use the Website in a manner that could disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site. Such uses would include, for example, distributing or promoting material containing solicitations, forwarding chain letters, sending “spam” email, “chain letters,” “pyramid schemes,” or any other form of solicitation.
8.9 Seek to obtain access to any materials or information through “hacking,” “scraping,” or through other means we have not intentionally made available to you through the Website.
8.10 Use the Website for any purpose that is unlawful or prohibited by these Terms. For example, you will not use the Website, Facilities, or Content to violate any law, statute, or regulation. Further, you will not use the website to engage in or promote illegal activities, such as instructions on or promotion of purchasing or creating illegal drugs, explosives or weaponry, or promoting or selling child pornography, controlled substances or pharmaceuticals.
8.10.1 Use the Site to engage in any activity that may violate FOSTA, including but not limited to, using the Site to engage in any activity that (i) promotes or facilitates prostitution or (ii) facilitates traffickers in advertising the sale of unlawful sex acts with sex trafficking victims. You acknowledge and agree that you will defend, indemnify, and hold Dating Kinky and its subsidiaries, affiliates, officers, directors, agents, and employees harmless for claims, including reasonable attorneys’ fees, arising from any claim alleging that you have (i) promoted or facilitated prostitution, (ii) facilitated traffickers in advertising the sale of unlawful sex acts with sex trafficking victims, and/or (iii) violated FOSTA
8.11 Use the Site to solicit information from, peruse or collect pictures or other images of, or engage in or attempt to engage in any other interactions with any person under the age of 18.
8.12 Solicit money, passwords or other personal identifying information from a Member.
8.13 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. Similarly, you will not upload, post, email, or otherwise transmit, or post links to any material that is false, misleading, or designed to manipulate any equity, security or other market.
8.14 Impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity in connection with this Site, or express or imply that we endorse any statement you make. Use the Site to solicit information from, peruse or collect pictures or other images of, or engage in or attempt to engage in any other interactions with any person under the age of 18.
8.15 Use any Member email address obtained from our Site for any purpose other than as directed by that Member. Notwithstanding the foregoing, under no circumstances including, but not limited to, direction by said Member, shall you use any email address to send advertisements or other solicitation to our Members.
8.16 Advertise or make any personal information, including but not limited to phone numbers, Kik usernames, or email addresses, available on your Profile.
We will enforce the above Community Guidelines wherever we deem necessary. Please understand, however, that Dating Kinky does not endorse the Content accessed through our Facilities. When you use our Facilities, you do so at your own risk, and we expressly disclaim responsibility for the Content accessed through these Facilities.
9. Chat Guidelines
As a condition to your use of the Chat, you agree to comply with these Terms, the Community Guidelines, and the Chat Rules as set out below.
9.1 Do not advertise businesses, competing websites, or other sites in the Chat. Such advertisements are considered “Spam.” If a Member sends Spam, the Member may be booted from the Chat.
9.2 Do not flood the Chat with useless messages.
9.3 Be aware that some Members consider text written entirely in block capitals equivalent to shouting. Writing text entirely in block capitals is discouraged; however, it is not a bootable offense.
9.4 Be polite to other Members.
9.5 Do not use the Chat for any purpose that is unlawful or prohibited by these Terms.
9.6 Do not use the Chat to engage in any activity that (i) promotes or facilitates prostitution, (ii) facilitates traffickers in advertising the sale of unlawful sex acts with sex trafficking victims, or (iii) may violate FOSTA.
9.7 You should only boot another Member from the Chat if such Member is egregiously abusing the CHat. Egregious abuse of the Chat includes but is not limited to the following actions by Members:
9.7.1 Sending multiple rude, disrespectful, or insulting comments to other Members,
9.7.2 Sending messages that discuss or suggest bestiality or sexual relations with minors,
9.7.3 Posting outside contact addresses or website addresses,
9.7.4 Sending Spam or sending multiple messages in order to disrupt the Chat, or
9.7.5 Sending messages or content to threaten others.
9.8 Misuse of the ability to boot other Members from a Chat may result in the removal of your ability to boot Members from a Chat in the future.
9.9 Do not retaliate if you are booted from a Chat.
9.10 Report any problems regarding the use of Chat to us, by clicking support@DatingKinky.com.
10. Monitoring of Facilities; Removing Postings
Furthermore, we reserve the right to audit your use of the Site to monitor your compliance with FOSTA. We also reserve the right to conduct investigations at any time and within our sole discretion. Such audits and investigations may include, but are not limited to, monitoring your use of the Website, your Profile, any communications made on the Site, and other Content transmitted through the Site.
10.1 Filters; Blocking and Removal of Content
We may employ filters designed to detect and block the transmission of messages that contain inappropriate or unauthorized content. We reserve the right to edit, refuse to post, or remove any information or materials, in whole or in part, that we believe, in our sole discretion, are incompatible with our Community Guidelines or these Terms.
Dating Kinky has implemented specific guidelines for the subject matter that can be depicted in the Content that you upload onto the Website. In an effort to ensure Member compliance with the Content guidelines, Dating Kinky has created procedures for reviewing uploaded Visual Content. Visual Content is reviewed and filtered by Moderators and is designed to ensure compliance with our guidelines and these Terms before it is posted on our Site. Dating Kinky may choose, but does not assume the obligation, to “spot check” any Visual Content to ensure that the Visual Content posted complies with the guidelines provided on the Site. Nothing in this Section 10.1 (Filters; Blocking and Removal of Content) is to be construed as absolving you of your obligations pursuant to (i) Section 6.6 (Rights You Must Have in Your Content Records) or (ii) Section 6.7 (Compliance with FOSTA). Dating Kinky has no, and assumes no, responsibility for the Content that you have uploaded onto the Website.
10.2 Reports and Complaints
If you believe that a Member or other user has acted inappropriately, such as by violating our Community Guidelines, you may report your concerns by contacting us in accordance with Section 27 (Contact Us) or as otherwise may be provided on our Site. If we are notified by a Member or Site Visitor that he or she believes Content at the Site does not comply with our Community Guidelines or these Terms, we may investigate the allegation and determine, in our sole discretion, whether to remove or block access to such Content, or to take action with respect to person or persons responsible for posting the Content. We have the right (but not the obligation), in our sole discretion, to remove, relocate, or otherwise block or restrict any Content at any time, with or without notice, and without liability in order to ensure compliance with our Terms and our posted guidelines. See paragraph 10.2.1 below for the contact if you believe there has been a copyright infringement, and see paragraph 10.2.2 below for the contact if you believe there has been a FOSTA violation.
10.2.1 Contact for Alleged Copyright Infringement
Dating Kinky respects the intellectual property rights of others and requires that its users do the same. If you believe that any content available on our Site or any other activity taking place on the Site constitutes infringement of a work protected by copyright law (a “Work”), please notify us to respond to such concerns, as follows:
Dating Kinky, Inc.
P.O. Box 16366
Chapel Hill, NC 27516
Your notice must comply with the DMCA. Upon receipt of a proper notice, we will respond and proceed in accordance with the DMCA. Use of the phone is for queries only and will not constitute DMCA notification.
10.2.2 Contact for Suspected Violations of FOSTA
Dating Kinky, Inc. requires that its users comply with FOSTA. If you believe that any User or any activity taking place on the Site is attempting or conspiring (i) to promote or facilitate prostitution or (ii) to facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims, please notify our FOSTA Compliance Team as follows:
Dating Kinky, Inc.
P.O. Box 16366
Chapel Hill, NC 27516
10.3 Revocation or Suspension of Use Privileges
We reserve the right at any time to terminate or suspend your account(s) or your access to our Site or to certain Facilities at any time and for any reason, in our sole discretion. In the event that Dating Kinky terminates a paid account, all membership fees paid up to the date of termination are nonrefundable. Upon such termination, all rights and licenses granted to you under this Agreement are immediately terminated.
10.4 Member disputes
You are solely responsible for your interaction with other Members, both online or offline. We may monitor disputes between you and other Members, but we have no obligation to become involved. If you have a dispute with one or more Members, you release Dating Kinky (and our officers, directors, agents, employees, subsidiaries, and affiliates) from all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such dispute. You assume all risks in your interactions with other Members. You agree to engage in all appropriate and necessary safety measures should you choose to meet any Member. We make no representations, express or implied, regarding the conduct of our Members.
11. Privacy and Your Disclosure of Information Via Our Facilities
We allow certain companies to place links on our Site. Although we have selected these companies, we are not responsible for your choice to contact or do business with them. A link from this Site to another website (or a link from another website to this Site) does not constitute a referral, endorsement, approval, advertising, offer or solicitation with respect to such website, its contents, or any products or services advertised or distributed through that website. Dating Kinky is not responsible for the content or the privacy practices employed by other websites. Your correspondence and dealings with these companies, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the company, and you agree that Dating Kinky shall not be responsible or liable for any loss or damage incurred as the result of your dealings with said companies or as the result of the presence of said companies on our Site.
The Website may contain links or references to third party websites. Dating Kinky has no control over these third party sites or their content and does not assume responsibility or liability for any content, opinions, or materials and products available on them. Dating Kinky does not endorse the content of any third party site, nor does Dating Kinky warrant that a third party site will be free of computer viruses or other harmful code that can impact your computer or other web-access device. If you link to any third party site through our Site, please be aware that you are doing so at your own risk.
13. Technical Restrictions; Remedies
You must respect our file size, bandwidth and storage limitations for Content you submit and the Profile you create. If we determine, in our discretion, that it is necessary, we will disable or take other related action concerning accounts that in our view are using excessive bandwidth or other system resources. In addition, we reserve the right, if we find it necessary (in our discretion), to delete or change a Member’s username and URL address, and to restrict the number of emails which a Member sends to other Members in any 24-hour period, if we believe, in our discretion, that the volume of email is too large.
14. Warranty Disclaimer
DATING KINKY DOES NOT WARRANT THAT THE WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT THE CONTENT, FACILITIES, AND FEATURES OFFERED ON OUR SITE WILL BE PROVIDED ERROR-FREE OR UNINTERRUPTED. THE SITE, AND ALL OF THE PROGRAMS AND FACILITIES ON THE SITE ARE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. DATING KINKY DOES NOT WARRANT OR REPRESENT THAT THE SITE OR ANYTHING YOU DOWNLOAD FROM THE SITE WILL BE FREE OF VIRUSES OR OTHER HARMFUL FEATURES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, DATING KINKY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. YOU EXPRESSLY AGREE THAT USE OF THE SITE AND RELATED SERVICES IS AT YOUR SOLE RISK.
Please consider maintaining backup copies of the Content you post on your Profile.
15. Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, TORT, OR NEGLIGENCE, WILL DATING KINKY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) THAT ARISE OUT OF, OR ARE RELATED TO, YOUR USE OF THE SITE, ITS PROGRAMS, SERVICES, CONTENT, PROMOTIONAL ITEMS, OR GIVEAWAYS, EVEN IF DATING KINKY IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DATING KINKY’S AGGREGATE LIABILITY TO YOU FOR ANY LOSS, DAMAGE, OR CLAIM RELATED TO, OR ARISING OUT OF, THE SITE OR ANY PROGRAMS OR SERVICES YOU RECEIVE FROM THE SITE EXCEED $100.00.
YOU MAY DECIDE TO ENGAGE IN OFFLINE ACTIVITIES WITH MEMBERS FROM OUR SITE ON AN INDIVIDUAL BASIS, IN GROUPS, OR THROUGH EVENT LISTINGS. YOU ACKNOWLEDGE THAT DATING KINKY MAKES NO WARRANTIES WITH RESPECT TO ANY MEMBER, ANY INFORMATION PROVIDED BY ANY MEMBER ON THE WEBSITE, OR ANY INFORMATION REGARDING PARTIES. YOU AGREE TO RELEASE AND HOLD DATING KINKY HARMLESS FROM ANY AND ALL LOSSES, DAMAGES, RIGHTS, CLAIMS, AND ACTIONS OF ANY KIND INCLUDING, WITHOUT LIMITATION, DEATH, PERSONAL OR BODILY INJURIES, EMOTIONAL DISTRESS, OR PROPERTY DAMAGE, EITHER DIRECTLY OR INDIRECTLY RELATED TO OR ARISING FROM YOUR PARTICIPATION IN ANY SUCH OFFLINE ACTIVITIES, INCLUDING BUT NOT LIMITED TO MEETINGS, COMMUNICATION, OR ANY OTHER FORM OF ENGAGEMENT WITH ANOTHER MEMBER ON THE SITE, WHICH INCLUDES MEMBERS WHO MAY HAVE REGISTERED UNDER FALSE PRETENSES OR WHO MAY ATTEMPT TO HARM YOU. YOU ACKNOWLEDGE THAT DATING KINKY IS NOT OBLIGATED TO PERFORM ANY SORT OF CRIMINAL OR OTHER BACKGROUND CHECKS ON ITS MEMBERS. DATING KINKY RESERVES THE RIGHT TO PERFORM SUCH BACKGROUND CHECKS OR OTHER SCREENINGS (INCLUDING BUT NOT LIMITED TO SEXUAL OFFENDER REGISTRIES) AT ANY TIME USING ALL AVAILABLE RESOURCES AND BY BECOMING A MEMBER OF THIS SITE, YOU HEREBY CONSENT TO SUCH SEARCHES. DATING KINKY IS UNDER NO OBLIGATION TO INFORM ANY MEMBERS OF THE RESULTS OF SUCH SEARCHES, IF ANY ARE SO PERFORMED, OR TO TAKE ANY ACTION AGAINST THE SUBJECTS OF SUCH SEARCHES BASED UPON SEARCH RESULTS.
You agree to defend, indemnify, and hold Dating Kinky and its subsidiaries, affiliates, officers, directors, agents, and employees harmless from any liability to third parties, arising from or related to any of the following (each, a “Claim”): (a) your use of, inability to use, or activities in connection with this Site; (b) any violation of this Agreement or any other terms, conditions, or policies by you or through any account you may have with this Site; (c) any transaction you may enter into through or in connection with this Site; (d) any allegation that any submission or other materials that you made available through this Site infringes or otherwise violates the intellectual property, privacy, or other rights of any third party; or (e) your violation of any rights of any other Member, user, consumer, or any other third party; and you will reimburse Dating Kinky on demand for any damages, losses, costs, judgments, fees, fines and other expenses they incur (including attorneys’ fees and court costs) as a result of any such Claims. This defense and indemnification obligation will survive the termination of this Agreement and will exist in perpetuity, regardless of whether you later cease using the Site or remove submissions from the Site
17. Agreement to Arbitrate
You and Dating Kinky agree to resolve any claims or disputes between you and Dating Kinky through arbitration and in accordance with the agreement to arbitrate discussed in this Section (“Agreement to Arbitrate”). Any dispute or matter arising in connection with or relating to these Terms shall be resolved by binding and final arbitration before the American Arbitration Association. The number of arbitrators shall be one (1). The party intending to seek arbitration must first send notice of the dispute and intention to arbitrate (“Notice of Dispute”) to the other party by certified mail. The Notice of Dispute must include a description of the nature of the claim and the relief sought. You should send the Notice of Dispute to Dating Kinky at: Dating Kinky, Inc., P.O. Box 16366, Chapel Hill, NC 27516. Dating Kinky will send any Notice of Dispute to you at the address associated with your account. If you and Dating Kinky cannot resolve the claim described in the Notice of Dispute within thirty (30) days after the notice is sent, either party may initiate arbitration proceedings. The arbitration shall be conducted in Wade County, North Carolina, and North Carolina law shall apply. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Any dispute shall be determined on an individual basis, shall be considered unique as to its facts, and shall not be consolidated in any arbitration or other proceeding with any claim or controversy of any other party. If the value of the relief sought is $1,000 or less, either party may elect to have the arbitration conducted by telephone or based solely on written submissions (“Written Submission Arbitration”). Subject to the discretion of the arbitrator to require an in-person hearing under warranting circumstances, if either party elects Written Submission Arbitration, such election shall be binding on both parties. Unless the arbitrator requires otherwise, both parties may attend by telephone if an in-person hearing is held.
You may choose to opt-out of this Agreement to Arbitrate by mailing us a written opt-out notice (the “Opt-Out Notice”). You must mail the Opt-Out Notice to Dating Kinky, Inc., P.O. Box 16366, Chapel Hill, NC 27516. The Opt-Out Notice must be postmarked no later than thirty (30) days after you create an account. For the Opt-Out Notice to be effective, (i) you must provide your name, address, phone number, and email address on the Opt-Out Notice, and (ii) you must sign the Opt-Out Notice. The only way you can opt-out of this Agreement to Arbitrate is to provide an Opt-Out Notice, conforming with the procedures outlined in this section. Opting-out of this Agreement to Arbitrate does not affect the application of any other part or section of these Terms.
18. Additional Terms for Certain Facilities or Sites
We may offer certain programs or Facilities on our Website that are subject to additional or different terms and conditions. We will notify you if the program or facility you are using on the Website is subject to terms and conditions that differ from these Terms, and you may decline to participate in such programs or Facilities if you do not agree with the differing terms and conditions.
19. Modifications to these Terms
We reserve the right to modify, in our sole discretion, these Terms, at any time and for any reason. A revised set of Terms will be effective as of the date it is posted on the Site and Dating Kinky is under no obligation to notify you of any such changes beyond such post. If you do not want to agree to the changes in the Terms, you may terminate your membership.
These Terms shall not be assignable by you, either in whole or in part. Dating Kinky reserves the right to assign its rights and obligations under these Terms.
21. Governing Law
These Terms shall be governed in all respects by the laws of North Carolina without giving effect to its conflict of law provision.
If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent allowed by law. The waiver by Dating Kinky of a breach of any provision of these Terms will not operate or be interpreted as a waiver of any other or subsequent breach. Headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section. Dating Kinky’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. The Facilities of Dating Kinky and our Website are available only where permitted by law. By using our Site, you warrant that the laws of your particular jurisdiction do not prohibit your activities or your use of our Site. The parties waive all rights to trial by jury in any action or proceeding instituted in connection with these Terms. You agree that a violation of this Agreement could cause irreparable harm to Dating Kinky. As such, Dating Kinky is entitled to seek an injunction against you without the necessity of posting any bond or other security. This Agreement and the terms and conditions contained herein set forth the entire understanding and agreement between Dating Kinky and you with respect to the subject matter hereof and supersede any prior or contemporaneous understanding, whether written or oral.
23. Duration of Rights
You will continue to enjoy your rights and to owe obligations under these Terms until (i) you cease your use of the Facilities, or (ii) your password is revoked or suspended for misconduct, as set out in Section 10.3 (Revocation or Suspension of Use Privileges).
24. Duration of Terms; Survival
The following provisions shall survive the termination of these Terms and shall apply indefinitely:
Section 6.10 (Termination of Rights; Survival) Section 7.2 (Dating Kinky Ownership; Reservation of Rights) Section 14 (Warranty Disclaimer) Section 15 (Limitation of Liability) Section 16 (Indemnity) Section 17 (Agreement to Arbitrate) Section 20 (Assignment) Section 21 (Governing Law) Section 22 (General) Section 24 (Duration of Terms; Survival)
26.1 “Agreement” means these terms and conditions, as may be amended and modified from time to time by Dating Kinky in its sole discretion.
26.2 “Agreement to Arbitrate” has the meaning set out in Section 17 (Agreement to Arbitrate).
26.3 “Charter Members” has the meaning set out in Section 4.2.4 (Charter Members).
26.4 “Content” shall mean both Textual Content and Visual Content.
26.5 “Moderators” has the meaning set out in Section 126.96.36.199 (Content Moderators).
26.6 “Dating Kinky Content” has the meaning set out in Section 7.2 (Dating Kinky Ownership; Reservation of Rights).
26.7 “Facilities” has the meaning set out in Section 6.1 (Facilities).
26.8 “FOSTA” means the Allow States and Victims to Fight Online Sex Trafficking Act.
26.9 “Lifetime Member” has the meaning set out in Section 4.2.3 (Lifetime Members).
26.10 “Member” shall mean collectively: (i) Free Members, (ii) PLUS Members, (iii) Lifetime Members; and (iv) Charter Members, or any combination of (i)(iv) as the context permits.
26.11 “Notice of Dispute” has the meaning set out in Section 17 (Agreement to Arbitrate).
26.12 “Opt-Out Notice” has the meaning set out in Section 17 (Agreement to Arbitrate).
26.13 “PLUS Member” has the meaning set out in Section 4.2.2 (PLUS Members).
26.14 “Party Information” has the meaning set out in Section 4.2.5 (VIP Members).
26.16 “Privacy Controls” shall mean the options that Members have to protect the information that they provide to the Website. For a detailed discussion of your Privacy Controls, please refer to Section 6.2 (Privacy, Your Profile, and Privacy Controls).
26.17 “Profile” has the meaning set out in Section 3.1 (Our Website).
26.18 “Registration” shall mean the process by which a user of our Site becomes a Member. For a detailed explanation of this process, please see Section 4 (Registration Process; Membership Types).
26.19 “Site Visitors” has the meaning set out in Section 4.3 (Site Visitors).
26.20 “Spam” has the meaning set out in Section 9.1.
26.21 “Textual Content” shall mean and include: (i) text based information that is posted on a Member Profile, (ii) text based information regarding Party Information, (iii) forum postings, (iv) email sent from Members of our Site to other Members, (v) instant messages sent between Members, (vi) any story submissions, (vii) statements made while participating in a Chat; and (viii) any feedback about our Site and Facilities.
26.22 “Visual Content” shall mean: (i) photographs, (ii) visual depictions; and (iii) videos; that are posted on our site.
26.23 “Visual Content Formatting” shall have the meaning set out in Section 6.4 (Formatting; Visual Content Capability).
26.24 “Written Submission Arbitration” has the meaning set out in Section 17 (Agreement to Arbitrate).
27. Contact Us
If you have any questions, please contact us via certified mail at:
10th Cloud, Inc.
1225 Duplin Road
Raleigh, NC 27607 US
These terms were last updated on July 31, 2018.