Homegrown Video®
WEBMASTER AFFILIATE PROGRAMS
Terms and Conditions
Effective as
of: August 18, 2008
THIS IS A LEGAL CONTRACT BETWEEN US.
BY CLICKING THE “ACCEPT” BUTTON ON THE SIGN‑UP FORM YOU ARE AFFIRMATIVELY
STATING YOU HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS AND YOU AGREE TO
BE BOUND BY THEM. YOU CANNOT BECOME
AN AFFILIATE UNLESS YOU HAVE ACCEPTED THESE TERMS AND CONDITIONS.
WELCOME TO THE HOMEGROWN VIDEO® WEBMASTER AFFILIATE PROGRAM!
Homegrown Video® offer access to some great amateur adult content.
That’s why we have developed our Webmaster Affiliate Programs for sending
your traffic to our Site. It’s
simple. You sign-up to become an
Affiliate, put an appropriate banner or link on your website directing traffic
to our Site, and we pay you for the traffic you send in accordance with the
applicable Program. So that we can
work together, we need to explain how this all works.
That is the reason for these Terms and Conditions.
We tell you about how our Programs work, what we expect you to do, what
we expect you not to do,
and what we will do in return. We
have several specific Programs – and we are always trying to think up new ones –
so we often have supplemental terms specific to each Program.
But to save ourselves from repeating the basics every time we put all the
common stuff here. That means these
Terms and Conditions apply to every one of our Webmaster Affiliate Programs in
addition to any supplemental Program specific terms.
1. ABOUT OUR
WEBMASTER AFFILIATE PROGRAMS
1.1.
Who’s Who And What’s What
To get started, we need some terminology.
We are New Destiny Internet Group, LLC – or “we”, “us” or “ND.”
We’ll call you the “Webmaster” or “you.”
We own and operate of the web site at http://www.homegrownvideo.com
and all its affiliated websites, which we’ll call our “Site.”
We’ll call the traffic you send to us
“Traffic.” “Program” means any or
all of Webmaster Affiliate Programs that you join.
1.2.
This Is a Binding Legal Contract
By clicking on the “Accept” icon on the sign-up page you are making a binding
legal contract between us on the terms of these Terms and Conditions as well as
any supplemental terms for each Program you join.
In case of any conflict between the Terms and Conditions on this page and
the supplemental terms for a specific Program, the supplemental Program terms
prevail. These Terms and Conditions and
the supplemental Program terms may be changed periodically as provided in
Paragraph
1.5,
and our contract includes these changes as well.
If you don’t like these Terms of Conditions, then we’re sorry to see you
go, but we can’t let you join any Program.
But if you do want to join, then please take a minute to read on.
Remember, ignorance of these Terms and Conditions is not an excuse for
non-compliance once you join.
1.3.
You Must Be Over 18 to Affiliate With Us
Our Site features Adult Entertainment.
By signing up to become an Affiliate or attempting to enroll in any of
our Programs you positively certify
that you are older than 18 years of age or the age of majority where you live,
whichever is older; that you are familiar with all laws in your area affecting
your legal right to access or make available adult-oriented materials; that you
have the legal right to access adult-oriented materials and we have the legal
right to transmit them to you; and that you will
never make any materials from our
Site available to a minor or in any way
or allow a minor to access them from your Affiliated Site.
1.4.
Custodian of Records
All persons who appear in any visual depiction of sexually explicit conduct on
our Site were to the best of our knowledge 18 years of age or older at the time
the depictions were created. The
records required by 18 U.S.C. § 2257 and 28 C.F.R. § 75 for visual depictions of
sexually explicit conduct are kept by our custodian of records, Farrell Timlake.
You can reach him at
timlake@newdig.com. His
business address is the address for our offices set forth below.
1.5.
Changing These Terms and Conditions
We may periodically change these Terms of Conditions and any Program
terms at any time as we believe necessary or convenient in our discretion to
manage our Site, to operate any Program or other wise as we deem fit.
Therefore, you should periodically check our Terms and Conditions to find
the latest versions. You agree we
can make changes by posting the changed our Terms and Conditions on our Site
with a notice that indicates their effective date, which will be on or after the
posting date. We will endeavor to
post a notice about any upcoming change to our Terms and Conditions at least 5
days before it becomes effective, but do not guarantee to do so.
We agree that no change will reduce any payment to which you are entitled
during the calendar month in which the change becomes effective, and that
changes to billing amounts and procedures will only be effective starting in the
calendar month after the change was effective.
If you do not like any change you can always cancel your Affiliation.
However, you agree that your continued participation in any Program after
a change becomes effective means that you accept the changed Terms and
Conditions and supplemental program terms.
We agree that no change will diminish your rights with respect to any
Claim (see Paragraph
6.5)
you may have that accrued before the effective date of any such change.
2.
SIGNING-UP AND BECOMING AN AFFILIATE
2.1.
Enrolling and Creating Your Account
The first step to becoming an Affiliate is to enroll on the sign-up page.
You will need to give us some personal information to identify you and
your payment requirements. You will
also need to identify the website(s) which you want to become your Affiliated
Site. When you complete the process
we will create an Account in your name for tracking payments in Programs in
which you enroll.
2.2.
Providing Tax Information for Payment
In order for us to make payment you must also provide us with your current
federal tax identification number such as your Social Security Number or
Employer Identification Number. We
reserve the right to withhold any payment to you unless and until we receive
this information.
We may also require additional forms required by the government to verify
this information.
2.3.
Complete and Accurate Information Is Essential
You must provide complete, accurate and current information about you when you
sign up to become an Affiliate and create your Account.
You also agree to update the information periodically as necessary to
keep it current. If we have a
question about any information you have provided you agree to give us any
additional information we need to resolve the question if you want to continue
as an Affiliate. You also authorize
us, directly or through third parties, to make inquiries that we consider
appropriate to validate any information you provide.
We are especially concerned about information showing that you are over
18 years of age and take this seriously.
If you misrepresent who you are or provide any information that is false
or materially misleading, we reserve the right in our sole discretion to suspend
or cancel your Affiliation without notice and to take such other action as may
be allowed by law.
2.4.
Reasons We May Decline Your Affiliation
After you have completed the sign-up process we may attempt to verify the
information provided. We may
decline to allow you to become an Affiliate in our discretion if: (i) we
determine that you have provided materially inaccurate or incomplete personal or
sign-up information; (ii) we discover that you are under 18 years of age or the
age of majority where you live, whichever is greater; or (iii) we decide that
your Affiliated Site(s) are unsuitable for any of our Programs or includes
content that we believe is unlawful, defamatory, obscene, harassing, excessively
violent, infringing or otherwise objectionable.
In such a case, we will endeavor to provide you with e-mail notice that
we have declined your affiliation.
2.5.
Selecting Your Username and Password
When you become an Affiliate you will need to select a unique Username and
Password to access your Account.
Your Username cannot be confusingly similar to the name of another Affiliate,
violate any trademark, or be offensive or in bad taste.
You must keep your Username and Password confidential as you are
responsible for all activity initiated under them.
At no time should you respond to any online request for your Username or
Password except in connection with the log-on process to our Site.
Your disclosure of your Username or
Password to any other person is entirely at your own risk.
2.6.
Your Account Is Personal and Cannot Be Transferred
Your Account and Affiliation is personal to you and may not be
transferred to or used by any other person, and any attempt to do so will be
void and a material breach of these Terms and Conditions.
Under no circumstances may you
ever allow anyone who is under 18 years of age, or the age of majority where you
live if older, to use your Username or Password to access your Account, our Site
or any of its Content. If we
discover you have done so, we may immediately cancel your Affiliation without
prior notice. If you suspect that
someone is using your Username or Password without your authorization, contact
us immediately. You will need to
give us all information you have about the unauthorized use and co-operate fully
with us in investigating the matter.
We may request that you adopt additional security procedures in the
future to prevent further unauthorized use.
2.7.
Your Right To Cancel Your Affiliation
You may cancel your Affiliation or Account at any time for any reason by
giving us notice at the e-mail address for so doing identified on our Site or by
writing to us. Cancellation will be
effective as soon as we receive notice or on the later date if any specified in
your notice. Of course, you can
always remove all of our Banners and Links from your Affiliated Site, but we do
ask that you also send us a notice of cancellation for our records.
2.8.
Our Right to Cancel Your Account
We may also cancel your Affiliation and Account at any time for any reason.
If we cancel for any reason other than your breach of these Terms and
Conditions, we will endeavor to provide you notice of cancellation.
In addition, we will pay you for any Compensation to which you are
entitled under each applicable Program up to the date of termination.
If we cancel due to a breach of these Terms and Conditions, we may
withhold any payment due to you if and to the extent allowed for the specific
breach (e.g. for sending unsolicited e-mail), or otherwise withhold a reasonable
amount of any payments due to you as set-off against any damages or losses we
reasonably anticipate due to your breach.
2.9.
Effect of Cancellation
If your Account or Affiliation is cancelled for any reason, by you or by us, you
must immediately remove from your computer any and all of our Banners and Links
from your Affiliated Site along with any other content, promotional materials,
or information provide to you or that you have downloaded, printed or otherwise
obtained from the Site. If we so
request, you agree to certify to us that you have done so.
3.
PARTICIPATING IN OUR PROGRAMS
3.1.
Joining a Program
Once you have created an Account you are entitled to enroll in any of our
Programs. You enroll in a Program
by selecting the Banner or Link for the specific Program and posting it on your
Affiliated Site. “Banner” means any
combination of text and graphics that identify and connect to our Site,
including banners, full page ads, half page ads, photo content, video previews,
video content and any other means of connection.
“Link” means a button, text link or URLs identifying our Site’s location
on the World Wide Web. Each Banner
or Link has a specific connection to our Site for each Program it references
which then tracks the Traffic from your Affiliated Site.
You can use multiple Banners or Links on your Affiliated Site for
multiple Programs unless specifically identified otherwise for a specific
Program.
3.2.
Your License To Use Our Banners and Links
By joining a Program we grant you a limited, non-exclusive,
non-transferable license to copy and use its Banners and Links on your
Affiliated Site for directing Traffic to our Site in accordance with these Terms
and Conditions (which including the specific terms for the Program).
You may select any Banners or Links from the samples available on our
Site for the applicable Program.
You may use the Banners and Links on your Affiliated Site as you believe
appropriate so long as the use is consistent with these Terms and Conditions.
However, you many not alter any Banners or Links.
In utilizing any Banner or Link you agree to cooperate with us as
necessary to establish and maintain an Internet connection between our sites.
You must also comply with all applicable
laws when connecting to our Site and you agree to do so.
Connecting to our Site may not be lawful in certain countries and
attempting to do so from a restricted country is prohibited.
3.3.
Limitations on Placement and Use
When you use our Banners and Links you may not employ deceptive language,
material omissions or misleading URLs.
You many not use our Banners and Links on any website in violation of the
site’s terms and conditions, such as restrictions on advertising.
You may not include our Banners or Links in unauthorized e-mail as
provided further below.
3.4.
Our Permission is Required to Use Your Own Banners or Links
We will provide you with a selection of approved Banners and Links for
each Program. You are only
authorized to use these Banners and Links on your Affiliated Sites.
You may not alter any of our Banners or Links, or use you own banners,
links or advertisements for any Program without our prior, express, written
permission in each instance and in our sole discretion.
We do not pay compensation for any banner, advertisement or link that you
create even if we approve it. By
submitting to us any banner, advertisement or link for our approval, you grant
us a non-exclusive, royalty-free, worldwide, perpetual, transferrable and
irrevocable license to use any banner, advertisement or link that we approve on
our Site and any other websites in any and all manner and media now know or
later arising, and you warrant that you have the right to grant us such a
license free of any claims by any other party.
3.5.
Our Retained Intellectual Property Rights
Our Banners and Links may contain intellectual property such as
copyrighted pictures, text or graphics or our trademarks, tradenames and domain
names. Your license gives you the
privilege to use our intellectual property solely in conformity with these Terms
and Conditions. We reserve
ownership of and all other intellectual property rights in our Banners and Links
and in the Content on our Site. Any
other attempted use or our Banners or Links or access to our Site other than in
conformity with your license is unauthorized may infringe our intellectual
property rights or those of our suppliers.
Homegrown Video® is a registered trademark of Xplor Media,
Inc. and used by us with permission.
Any other trademarks, logos, or slogans on our Site are only authorized
for use on our Site in conjunction with the particular product or service they
designate. No trademark, logo or
slogan on our Site may be used as a hyperlink without the prior written
permission of its owner.
3.6.
Unauthorized E-Mailing: Spam, Counterfeiting, Ghosting or Harvesting
We do not authorize Affiliates to
use any of our Banners or Links to market their Affiliated Sites through the
transmission of unsolicited e-mails or spam. We consider even a single
unsolicited e-mail to be spam and a violation of this section.
If we receive a complaint from a person who receives an e-mail from you
containing any of our Banners or Links you will need to demonstrate to us that
they did not receive an unsolicited e-mail. We
also do not authorize Affiliates to
transmit any e-mail that uses or contains invalid or forged headers, invalid or
non-existent domain names or other means of deceptive addressing (“counterfeit
e-mail”). Do not do this. We also
prohibit Affiliates from transmitting e-mail that uses any of our Banners or
Links that is relayed from any third party's mail servers without the permission
of that third party, or which employs similar techniques to hide or obscure the
source of the e-mail (“ghosted e-mail”). Do
not do this.
We do
not authorize the harvesting or
collection of screen names from any Internet Service Provider (ISP) for the
purpose of sending unsolicited e-mail that uses our Banners or Links in any way
(“harvesting”). Do
not do this.
The transmission of unsolicited e-mail, counterfeit e-mail, ghosted
e-mail or the like, or engaging in unauthorized e-mail harvesting, may result in
civil and criminal penalties against the sender under applicable federal or
state law.
3.7.
Consequences of Unacceptable E-Mail Conduct
If we discover you have engaged in or facilitated any spamming, counterfeiting,
ghosting, harvesting or other unauthorized e-mailing in violation of these Terms
and Conditions we may in our sole discretion and without prior notice
immediately cancel or suspend your Account, Affiliation or participation in any
Program. In so doing you agree that
we need not pay you for any Traffic
you have generated through our Banners or Links in the unauthorized e-mail up to
the date of termination. That is,
we need not try to segregate “authorized” from “unauthorized” Traffic, but can
assume that all Traffic generated by
you came from unauthorized use of our Banners or Links and hence is
not entitled to any compensation.
Furthermore, for such conduct you agree we can in our discretion cancel
you from any other Program, decline to issue a new Account, and provide your
sign-up and account information to complaining parties.
3.8.
Reporting Unsolicited E-Mail or Unauthorized E-Mail Conduct
If you believe you are the recipient of any unsolicited e-mail (spam) from any
person that contains any of our Banners or Links, or if you believe that you are
the victim of any acts of counterfeiting, ghosting or harvesting that involves
any of our Banners or Links, please advise us immediately.
Send your complaint to our customer service department or contact our
main offices. The best and easiest way
to do this is by forwarding the offending e-mail to us.
In addition, please include your name,
address, telephone number and any information you may have about the identity of
the person or entity that sent the unauthorized e-mail to you.
You may be able to collect information
about the sender from the e-mail itself, for instance, by examining the e-mails
“header,” by examining the webpage or by running a Whois query against the
webpage domain.
3.9.
Our Right to Terminate Any Program
We reserve the right to terminate any Program at any time for any reason.
If we elect to terminate any Program then we will endeavor to send you
electronic Notice (e.g. e-mail) of our decision to do so.
In any case, we will pay you all Compensation to which you are entitled
for the Program up to the date of termination.
3.10.
Your Right to Leave Any Program
You have the right to leave any Program at any time.
Simply remove the relevant Banners and Links for the Program from your
Affiliated Site. As no Traffic will
then be directed to our Site through the Banner or Link, your participation in
the Program will be effectively ended.
Of course, we will pay you all Compensation to which you are entitled for
the Program up to the date you leave.
To maintain our records, if we have not received any Traffic from your
Affiliated Site for any Program for a continuous period of 3 months, we may
assume that you have left the Program and may cancel your participation.
4.
PAYMENTS FOR EACH PROGRAM
4.1.
Specific Program Payments
The amount and type of Payment you receive for each Program is identified on our
Site when you select the Banners or Links for that Program.
The following provisions identify the type, calculation and payments for
various Programs. The specific
percentages and payment amounts for each program are identified on our Site.
Note: we reserve the right to
change the pay-out amounts for any Program as provided below.
4.2.
Pay Per Sign-Up
A “Pay Per Sign-Up” Program pays you a one-time, flat fee for each “full join”
we derive from Traffic directed to our Site from your Affiliated Site.
A “full join” means a new customer that you direct to our Site and who
signs-up to for a full membership or converts to a full membership at the end of
any trial period and whose payment is not subject to any credit or chargeback.
4.3.
Revenue Share
A “Revenue Share” Program pays you a specified percentage of “net revenue” from
the
monthly
membership fee we derive from Traffic directed to our Site from your Affiliated
Site. “Net revenue” means the
monthly membership fee that we actually receive from each new member you
directed to our Site for so long as that member continuously remains a member,
less all fees and charges for taxes, processing, handling, customer services,
credits or chargebacks.
4.4.
VOD Share
A “VOD Share” Program pays you a specified percentage of the “VOD fees” we
derive from Traffic directed to our Site from your Affiliated Site.
“VOD Fees” means the fee we actually receive for downloading or streaming
any content on our Site on a “video on demand” basis to a customer that you
direct to our Site, less all fees and charges for taxes, processing, handling,
customer services, credits or chargebacks.
4.5.
Store Share
A “Store Share” Program pays you a specified percentage of the “net price” of
merchandise sold through our Site derived from Traffic directed to our Site from
your Affiliated Site. “Net price”
means the purchase price that we actually receive for selling any merchandise
through the Store section of our Site to a customer that you direct to our Site,
less all fees and charges for taxes, processing, shipping, handling, customer
services, credits or chargebacks.
4.6.
When Payments Are Made
All payments will be calculated for each calendar month (or fraction) for so long as you participate in any Program. Payments will be mailed on the first Friday following the end for the preceding calendar month for which payment is due, except if the Friday is a holiday they will be mailed on the next business day. Payment will only be sent if the amount due you is at least US$100. Payment will be carried over from for successive periods until the amount due you is at least US$100. If you are a non-US resident, you may request that we withhold payment until the amount due is $500.00 to lower banking fees. You will be responsible for all bank charges and currency conversion or transmission fees incurred in converting your funds to your local currency.
4.7.
How Payments Are Made
All payments will be made to you by check in U.S. dollars.
Payments will be mailed to you at the
address you designated for payments when you created your account or as you may
have updated it from time to time.
As indicted above, we may withhold any payment unless and until we receive all
necessary payment information, including your federal tax identification number.
4.8.
Changing the Pay-Out Calculation
You agree that we have the right to change the pay-out or payment calculations
for any Program prospectively by
posting notice of the change on out Site.
We will also endeavor to send you notice of the change.
We will pay you all payments for the calendar month in which notice of
the change was posted under the pay-out terms applicable when the month began.
The change will become effective starting with the next calendar month.
If you do not agree to the change, you of course have the right to leave
the affected Programs. However,
your continuation in the affected Programs will indicate your acceptance to the
changed pay-out terms.
4.9.
Excessive or Abnormal Chargebacks or Cancellations
We may deny or withhold any payment to you and cancel your participation in any
Program if there has been an abnormal number of chargebacks or cancellations of
memberships from Traffic referred to us through your Affiliated Site.
You agree that we will have the right to determine what constitutes an
abnormal number of chargebacks or cancellations based on our review of the
situation and our experience with other Affiliates.
4.10.
Viewing Your Account On-Line
When you complete your Account we will create a place on our Site where you can
view the activity for each Program in which you participate.
This place may be accessed through your Username and Password.
You agree that these on-line records represent the basis for our
accounting of any payments due you.
We will maintain a log file of these records on our servers.
You agree that the content of our log files will provide the basis for
examining the activity in your Account.
.11.
Errors in Payments
If we discover an error in any payment we may correct the error in your next
payment by paying you the erroneous underpayment or deducting the erroneous
overpayment from your future payments.
If you become aware of any errors in your payments, give use notice
promptly. We agree to waive any
error in your favor that we do not correct within 6 months of the payments where
the error first appeared. You
likewise agree to waive any error in our favor unless you give us notice of the
error within 9 months after you receive the payment in which it first appears.
You also release us from all liability for any error you do not report to
us within 9 months after you receive the payment in which the error first
appeared. You can give us notice as
provided in Paragraph
7.1
5.
OPERATION OF OUR PROGRAMS
5.1.
Restricted Activity
In participating in any of our Programs we require that you conduct
yourself in an honest and professional manner.
As such, we do not authorize you to use our Banners or Links or engage in
any of the conduct in this section when participating in any of our Programs.
So doing will be a breach of these Terms and Conditions and allow us to
immediately suspend or cancel you participation in any Program or your Account
and Affiliation.
5.2.
Restrictions on How You Generate Traffic
You may not use our Banners or Links in any practices for generating
Traffic that could reflect negatively on us or our Site.
All Traffic sent to our Site must be
voluntary and originate from your Affiliated Site.
Using misleading text, forced exit
traffic, forced click-through or blind links with our Banners or Links are not
authorized.
5.3.
Restrictions on Promotions on other Websites
You may not use our Banners or Links in any postings in newsgroups,
bulletin boards, clubs, or sites where advertising links are not allowed.
You may not promote our Site using other websites that disallow this type
of advertising, such as Facebook or MySpace.
You may not advertise our Site on any website other than your Affiliated
Sites.
5.4.
Restrictions on the Type of Traffic You Send Us
You may not send any Traffic to us from any website which has any
content, on the page or in its URL, that might infringe the rights of others
including: warez; password selling or trading; copyright or trademark or other
intellectual property infringement; violations of privacy or publicity; or
unauthorized use or imitation of another’s name or likeness.
You many not send us any Traffic which
you are prohibited from sending any under any enforceable agreement or in
violation of the laws of any jurisdiction in which either you or we are located.
You many not send us any Traffic which contain or promotes, in any way:
obscene content, child pornography, bestiality, rape, warez, password selling or
trading, spam, intellectual property infringement, violation of privacy or
publicity rights, or unauthorized use or imitation of the name or likeness of
another.
5.5.
Use in “Circle Jerk” Sites Is Not Allowed
You may not use our Banners or Links in a Circle Jerk website or send us Traffic
from such a website. A “Circle Jerk”
means any website that hides or camouflages it entry button or link to their
graphics or picture, or that engages in any effort to hide the website’s true
content with the intention or result of tricking or encouraging browsers into
clicking on banners and URLs.
5.6.
Use in Frames is Not Allowed
You may not display any pages from our Site, including any target page
for any or our Banners or Links, in any frame or other web page that displays
our page with other advertising or content.
5.7.
You May Not Use Our URLS or Trademarks in Your URLS or Metatags
You may not use “Homegrown Video” or any of our trademarks, tradenames or
domain names in the URL address of your Affiliated Site, any meta-tags or title
of any pages at your Affiliated Site, or in a paid placement ad in any search
engine. This includes but is not
limited to: Homegrownvideo.com, Homegrownstore.com, Myhomegrown.com,
Housewivesunleashed.com, deepthroatvirgins.com creampieclub.com, or any other
site with whom we do business.
.8.
Traffic from Password Protected Sites
Any promotion of our Site from a
password protected website must first be approved by us.
You agree to provide us with a functional username and password
combination for accessing such website or URL.
The username and password combination must remain functional throughout
your participation in any Program.
We reserve the right to deny this type of promotion at our discretion.
5.9.
Serious Misconduct that can Lead to Immediate Suspension or Cancellation
We may immediately and without prior notice suspend or cancel your
Account or Affiliation or your participation in any Program, and also take
appropriate legal action against you, if we believe that you have engaged in any
of the following:
5.10.
Neither of Us are Responsible for Technical Glitches
We agree that neither of us are responsible to the other for any loss either of
us may experience due to computer server downtime, complications with our
hosting equipment or technical errors.
5.11.
You Are the One Responsible for Your Affiliated Site
You are responsible for the development, operation and maintenance of
your Affiliated Site and its content. Neither
of us are the agent of the other, and we have no responsibility for the
development, operation or maintenance of your Affiliated Site or its content.
You are responsible for ensuring that all content on your Affiliated Site
does not violate any laws, including 18 U.S.C. § 2257 and and 28 C.F.R. § 75.,
the rights of any other person, including all intellectual property rights
(e.g., patent, copyright, trademark and trade secret) and personal rights (e.g.
defamation, slander, rights of privacy and publicity). We are not responsible
for any content on your Affiliate Site that violates any law or the rights of
others.
5.12.
Changing The Content On Our Site
You agree that we may change the content, information or functionality of our
Site at any time as we like without prior notice to you.
However, we make no commitment to so.
6.
LIABILITY LIMITATIONS AND CLAIMS HANDLING
We are providing you with links that access to our Site and its Contents “as
is,” “with all faults” and “as available.”
The entire risk as to satisfactory quality, performance, accuracy, and
effort is with you. There is no
warranty that our Site or any of its Contents will meet your needs or
requirements. To the maximum extent
allowed by Law we disclaim all warranties, express, statutory or implied,
including warranties of merchantability, fitness for a particular purpose,
workmanlike effort, accuracy, completeness, title, exclusivity, quiet enjoyment
and non-infringement, and warranties that your access to or use of our Site will
be uninterrupted or error-free.
There are no warranties of any kind that extend beyond the face of this
agreement or that arise as a result of course of performance, course of dealing
or usage of trade.
In your access to our Site you agree we are not liable for: (1) any
information, comments or material you receive that is infringing, inaccurate,
obscene, indecent, threatening, offensive, defamatory, invasive of privacy, or
illegal; (2) any third party’s unauthorized access to or alterations of your
account, transmissions or data; (3) any viruses or other disabling code that may
infect your computer or affect your access to or use of your Affiliated Site,
your other services, hardware or software; (4) any incompatibility between our
Site and your Affiliated Site and other services, hardware or software, or (5)
any delays or failures you may experience in initiating, conducting or
completing any transmissions to or transactions with our Site.
To the maximum extent allowed by Law, our total liability for any claim arising
from these Terms and Conditions or your access to our Site is limited solely to
your incidental and direct damages, if any.
We
disclaim any liability for any other damages of any kind arising out of these
Terms and Conditions or your access to our Site.
In no event will either of us be liable for any special, consequential or
punitive damages arising out of or related to these Terms and Conditions or your
access to our Site. This exclusion
of special, consequential and punitive damages is independent of your exclusive
remedy and survives even if such remedy fails of its essential purpose or is
otherwise unenforceable. To the
maximum extent allowed by Law the limitations on liability in this paragraph
apply without regard to the claim for which they arose, whether due to strict
liability, breach of warranty (express or implied),
The disclaimers, exclusions and limitations in paragraphs in Paragraphs
6.1,
6.2
and
6.3
apply to the maximum extent permitted by applicable law, but no more.
They are not intended to deprive you of any mandatory protections
provided to you under applicable law.
Because some jurisdictions may prohibit the exclusion or limitation of
certain warranties, or liability for consequential damages, or other matters,
some or all of such disclaimers, exclusions or limitation may not apply to you.
A Claim means any assertion that either of us has breached any obligation or
impaired any right of the other arising under or with respect to these Terms and
Conditions. If you have any Claim
against us, please let us know!
Call our customer service department or contact us as indicated on our Site.
We would like to try to resolve all Claims in a fast and friendly manner
to ensure your continued satisfaction.
In order to allow each of us to address any Claims in a timely manner, each of
us agree to give the other one Notice of any Claim we may have within one (1)
year after our Claim accrued. If we
are unable to resolve any Claim amicably then we also agree to commence an
appropriate legal or arbitration proceedings to resolve the Claim within (6)
month after giving the other party Notice.
To the maximum extent allowed by applicable law, we both agree that a
failure to abide by either of these time limits will mean the Claim is
permanently barred.
The Forum for resolving all Claims will be in the state or federal courts in
If the total amount sought the party asserting any Claim does not exceed
US$5,000, then either of us may elect to resolve the Claim by neutral, binding
arbitration in the Forum under the Commercial Arbitration Rules of the American
Arbitration Association in effect as of the Effective Date of these Terms and
Conditions (the “AAA Rules”). As of
the Effective Date you can read these rules at
http://www.adr.org/arb_med. The
Claim may only be resolved by arbitration if the submission to arbitration
occurs before filing any legal action in court, otherwise the Claim must be
resolved by court action not arbitration.
The arbitrator will have authority to award all damages or other remedies
under applicable law. All Claims
not subject to arbitration will be resolved by court action.
The prevailing party in any arbitration or court action will be entitled
to recover all costs of suit, including reasonable attorney’s, expert and
professional fees.
7.
SENDING AND RECEIVING NOTICE
You may send notice to us by e-mail, by calling our customer service
department, or by writing to us at the locations shown on our Site.
An electronic notice will be considered received by us only when our
server sends a return message to you acknowle
e-mail:
webmaster@homegrownvideo.com
Address:
New Destiny Internet Group, LLC
We may change our contact information from time to time by posting the change on
our Site, so make sure to check out the Customer Support area of our Site for
the most current information for sending notice to us.
You consent to receiving any notice from us in electronic form either: (1) by
sending an e-mail to the e-mail address you specified when you signed up to
receive your Username and Password or (2) by posting the notice on a location on
our Site designated for such purpose.
Notices sent to you by e-mail will be deemed received when our e-mail
service indicates transmission to your e-mail address.
You confirm the e-mail address you gave when you signed up is a current
and valid one for receiving notice, and that your computer has hardware and
software configured to send and receive e-mails via the Internet and to print
any e-mail message you receive. If
you change your e-mail address, you agree that you will promptly update your
membership information with your current e-mail address for receiving notice.
You may change this consent at any time and request paper notice by
normal postal delivery, but if you do we may in our discretion elect to cancel
your Affiliation and Account at any time (because of the increased costs and
hassle). If we do agree to send
postal notice we may ask you to reimburse us for the reasonable cost and postage
of so doing.
We do not provide facilities for sending or receiving confidential electronic
communications. All messages
transmitted to us or from us should be considered open communications be readily
accessible to the general public.
You should not use any facilities on our Site to transmit or receive messages
only intended to be read by the sender and designated recipients.
All messages sent to our Site may be read by users or operators of our
Site regardless if they are intended recipients.
8.
MISCELLANEOUS PROVISIONS
You may send a copy these Terms and Conditions or send them to your printer for
printing. Please feel free to do
so! If you are having trouble
printing a copy, please contact use and we will be happy to send you a copy.
“Confidential Information” means the
terms of any agreement for any Program made specifically for your Affiliated
Site and not generally available to other Affiliates, business and financial
information relating to us, our customer and vendor lists, any list of our
members or Affiliates, and any other information we designate as confidential.
You agree to keep any Confidential Information that you receive as confidential
and secret as your most secure personal or company information and not to
disclose any Confidential Information to any third party without our prior
written permission or as required by governmental order or subpoena.
You agree not to use any Confidential Information directly or indirectly
for your own business purposes except to the extent it becomes generally known
to the public without violation of any confidentiality requirement. If you
receive any court or subpoena requesting any Confidential Information you agree
to notify us immediately and give us a reasonable opportunity to prevent its
disclosure.
Our Site is operated by us from our offices in
These Terms and Conditions may only be amended in a record, such an e-mail or
writing duly authenticated by the party to be charged.
None of our agents or customer service representatives are authorized to
waive any or modify any provision of these Terms and Conditions, and any
allegation that they have done so will be ineffective.
These Terms and Conditions supersede all prior terms of use, access,
communications or proposals, whether electronic, oral or written, between you
and us regarding access to our Domain or use of its Contents or services.
These Terms and Conditions will be governed by and interpreted under the laws of
the State of