Ashley Madison – Terms and Conditions
Last Updated: April 12, 2018
Below is a high level summary of these Terms. Please read these Terms carefully in their entirety before using the Platform and do not solely rely on the high level summary provided below. If you do not agree with any portion of these Terms, do not access or otherwise use the Platform or the Service.
User Conduct: By accessing the Platform and using the Service, you must act appropriately. YOU CANNOT USE THE PLATFORM OR OUR SERVICE IF YOU ARE NOT AT LEAST 18 YEARS OF AGE AND/OR THE AGE OF MAJORITY AND LEGAL CONSENT IN THE JURISDICTION IN WHICH YOU LIVE OR RESIDE AND HAVE THE LEGAL CAPACITY TO ENTER INTO THESE TERMS. YOU ALSO MAY NOT USE THE PLATFORM OR OUR SERVICE IF YOU HAVE EVER BEEN CONVICTED OF A SEXUAL OFFENSE, ARE REQUIRED TO REGISTER AS A SEX OFFENDER WITH ANY GOVERNMENTAL ENTITY OR AGENCY OR ARE CURRENTLY CHARGED WITH AN OFFENSE OF A SEXUAL NATURE. WE DO NOT TOLERATE ANY UPLOADING OF PICTURES OR OTHER DEPICTIONS OF ANYONE UNDER THE AGE OF 18. Please note that if you are using one of our mobile applications, additional terms may apply depending on the type of device you are using. For more information, please click here.
The Service: You may access the Platform and use the Service as a “guest” or a “full member”. Guests do not pay for their access to the Platform; however, they are only able to access certain features of the Service (for example, guests cannot communicate with other users). Full members are able to access additional features of the Service that are not available to guests (such as communicating with other users; ranking at the top of one’s inbox, etc.). You may become a “full member” by purchasing a subscription or credit package. Additional features, e.g. Member Initiated Contact (“MIC”) and/or Priority Man, may be offered along with credits or as part of a subscription package. Unless prohibited by applicable law, all purchases are non-refundable. For more information about becoming a full member, MIC and/or Priority Man, please click here.
Deletion/Deactivation: You may delete or deactivate your account at any time. For more information, click here.
Legal Stuff: These Terms set out the legal terms and conditions that govern our relationship with you and your access to the Platform and use of the Service. Put simply, except to the extent required by law, we don’t make any promises to you about the Platform or the Service and we will not be liable to you for any damages you incur in connection with your access to the Platform or use of the Service except as otherwise expressly stated in these Terms. In addition, to the extent permitted by law, you are fully liable for any damage we incur which is attributable to you. For more information on the terms and conditions that govern our relationship with you and your access to Platform and use of the Service, please click here.
Dispute Resolution: TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE TERMS REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. IF YOU ARE A RESIDENT OF THE UNITED STATES OF AMERICA, THESE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS. PLEASE NOTE THAT, DEPENDING ON YOUR COUNTRY OF RESIDENCE, UNDER CERTAIN CIRCUMSTANCES YOU MAY BE ABLE TO BRING A DISPUTE BEFORE THE APPROPRIATE AUTHORITIES OR COURTS IN THE COUNTRY IN WHICH YOU RESIDE. FOR MORE INFORMATION ON DISPUTE RESOLUTION, CLICK HERE.
WE MAY MODIFY ANY PORTION OF THESE TERMS AT ANY TIME PROVIDED:
- WE GIVE YOU A MINIMUM OF THIRTY (30) DAYS WRITTEN NOTICE OF SUCH MODIFICATION BEFORE IT BECOMES EFFECTIVE; AND/OR
- TO THE EXTENT THE APPLICABLE LAWS OF YOUR JURISDICTION REQUIRE EXPRESS AGREEMENT TO THE APPLICABLE MODIFICATION, WE HAVE OBTAINED YOUR EXPRESS CONSENT.
THE NOTICE CONTEMPLATED IN (a) ABOVE WILL SET OUT HOW YOU CAN ACCEPT OR REJECT THE APPLICABLE CHANGE AS REQUIRED BY THE APPLICABLE LAWS IN YOUR JURISDICTION.
We reserve the right to modify our prices at any time. In the event we change the price for ongoing Services which you have previously agreed to pay (for example, credit top-ups or monthly subscriptions), we will notify you of such changes as contemplated in this section. If you do not agree with the price change, we will no longer automatically top up your account or renew your subscription provided you following the instructions provided in such notice in accordance with the terms thereon (if any).
1.- USER CONDUCT
ASHLEY MADISON IS SIMPLY A SOCIAL NETWORK FOR ADULTS TO INTERACT. WE DO NOT ENDORSE OR ENCOURAGE ANY UNLAWFUL BEHAVIOUR IN ANY JURISDICTION IN WHICH THIS SOCIAL NETWORK IS MADE AVAILABLE. YOU ARE RESPONSIBLE FOR YOUR OWN COMPLIANCE WITH ALL LAWS THAT MAY APPLY TO YOU.
Our Service is ONLY intended for persons 18 years or older and who have otherwise attained the age of majority and legal consent in the jurisdiction of their residence. We will not knowingly permit anyone who does not meet these criteria to use our Service. By using our Platform and/or using the Service, you represent and warrant that you are at least 18 years old and otherwise have the right, authority and capacity to accept these Terms and abide by all of these Terms and conditions set forth herein. You also represent and warrant that you will not allow any minor access to the Platform or our Service, including taking all precautions and implementing all parental control protections on your computer or other electronic device used to access the Platform and our Service to prevent any minor from gaining access to the Platform and our Service. Further, you hereby commit to inform us immediately should you become aware of a minor using the Service.
Whilst we require all our users to be at least 18 years old, we are not responsible or liable for any misrepresentations regarding a user’s or member’s age or for the unauthorized use of the Platform or our Service by a minor.
B. Code of Conduct
In your use of our Service, you agree to act responsibly in a manner demonstrating the exercise of good judgment. For example and without limitation, you agree not to:
- violate any applicable law or regulation,
- infringe the rights of any third party, including, without limitation, intellectual property, privacy, publicity or contractual rights,
- use the information available through our Service for any unauthorized or unlawful purpose,
- interfere with or damage our Service, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology, including methods that in any way reproduces or circumvents the navigational structure or presentation of the Service or its contents,
- use our Service to transmit, distribute, post or submit any information concerning any other person or entity, including, without limitation, photographs of others, personal contact information or credit, debit, calling card or account numbers,
- use our Service to obtain the personal contact information of another user without his/her prior consent;
- use our Service in connection with the distribution of unsolicited commercial email ("Spam") or advertisements,
- "stalk" or harass any other user of our Service,
- use the Service if you have ever been convicted of a sexual offense or currently have such charges pending against you;
- use the Service for any illegal purposes, including, without limitation, prostitution and/or solicitation;
- collect or store any information about any other user other than in the course of the permitted use of our Service,
- use our Service for any commercial purpose whatsoever, including, without limitation, advertising or marketing any services or products,
- impersonate any person or entity,
- remove any copyright, trademark or other proprietary right notices contained in the Service,
- infringe on the intellectual property rights of the Service or any third parties in any manner,
- modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or our Platform or any software used on or for the Service,
- post, upload or transmit false, misleading or illegal information or content to the Service,
- make false statements, attempt or use personal, financial or other information that you are not authorized to use,
- upload, post, email, transmit or otherwise make available any content that you are not legally permitted to make available to the Service under any law or any contractual or fiduciary relationship (including, without limitation, inside information and information subject to obligations of confidentiality),
- disrupt the flow of dialogue, cause a screen to “scroll” faster than other users or members of the Service are able to read to type, or otherwise engage in behavior that negatively affects the ability of other users or members to engage in communications or other interactions on our Service,
- collect or store personal data about other users or members without their consent, or upload, post, email or transmit any other user’s or member’s private information or data,
- provide hyperlinks, URL links, graphic links or other direct connection to our Platform or the Service for profit or gain, or
- assist any third party in doing any of the foregoing.
C. User Content
By submitting any content (including, without limitation, your photograph and profile and other information) (your “Content”) to our Platform, you represent and warrant to us that the Content is posted by you and that you are the exclusive author of the Content and use of your Content by us will not infringe or violate the intellectual property or other rights of any third party. To the extent permitted by applicable law, you waive any and all moral rights to be identified as the author of the Content and any similar rights in any jurisdiction in the world. By submitting any Content to our Platform, you automatically grant, and you represent and warrant that you have the right to grant, to us, and our licensees, parent, subsidiaries, affiliates and successors, an unlimited, perpetual, worldwide, non-exclusive, royalty-free irrevocable, transferable right and license to use, reproduce, display, broadcast, publish, quote, create derivative works of, translate, sub-license, export, share, assign and modify such Content or incorporate into other works such Content, and to grant and to authorize sub-licenses and other transfers of the foregoing. You specifically authorize us to use this license to reproduce and display the photographs you transmit to us, in digital form alone or in connection with other images and to adapt, modify or alter your photographs or otherwise create derivative works based upon your photographs. We are under no obligation to remove your profile, picture and other information from our Service even after you have terminated your membership unless you utilize the option or we are otherwise required by applicable law. You represent and warrant to us that you have the absolute right to grant the license and other rights set forth above.
You are solely responsible for any content that you submit, post or transmit via our Service. You agree not to post or submit any content that:
- is libelous, defamatory or slanderous,
- contains pornographic, sexually explicit or vulgar content,
- may denigrate any ethnic, racial, sexual or religious group by stereotypical depiction or otherwise, including by promoting racism, bigotry, hatred or physical harm of any kind against any group,
- exploits images or the likeness of individuals under 18 years of age including in a sexual or violent manner, or solicits personal information from anyone under the age of 18, or harms minors in any way,
- encourages or otherwise depicts or glamorizes drug use (including alcohol and cigarettes) or any illegal acts,
- makes use of offensive language or images or is otherwise patently offensive to the online community,
- harasses or advocates harassment of another person,
- involves the transmission of "junk mail", "chain letters" or unsolicited mass mailing or Spam,
- promotes an illegal or unauthorized copy of another person's copyrighted work,
- characterizes violence as acceptable, glamorous or desirable,
- contains any illegal material or any material that infringes or violates another party's rights (including, without limitation, intellectual property rights and rights of privacy and publicity),
- constitutes an illegal act (including, without limitation, prostitution and/or solicitation) or provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses,
- solicits passwords or personal identifying information for commercial or unlawful purposes from other users,
- provides or promotes inaccurate, misleading or false information, or
- engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
If any information that you provide to us subsequently becomes inaccurate, misleading or false, you will promptly notify us of such change. The foregoing is a partial list of the kind of content that is illegal or prohibited on our Platform. We reserve the right to investigate and take appropriate legal action in our reasonable discretion against anyone who violates this or any other provision of these Terms, including, without limitation, removing the offending communication from the Service, terminating the violator's access to the Platform and contacting and disclosing information to the relevant authorities.
We have no obligation to post any content that you or anyone else submits. While we do not and cannot review every message or other material posted or sent by users of the Service, and are not responsible for any content of these messages or materials, we reserve the right, but are not obligated, to monitor, delete, move, remove, block, refuse to post or transmit, or edit messages or materials, including, without limitation, advertisements, profiles, public postings, emails, and messages, that we, in our discretion (acting reasonably), deem to violate these Terms or any applicable content guidelines, or to be otherwise unacceptable. You remain solely responsible for the content of profiles, public postings, messages and other materials you may upload to the Service or users of the Service. We cannot guarantee, and assume no responsibility for verifying, the accuracy of the information provided by other users of the Service.
D. Representations and Warranties
You: (a) must not use our Service unless you have the full power and authority to enter into and perform these Terms; (b) will not use our Service to infringe or violate the copyright, trademark, right of publicity or any other legal right of any third party; (c) will comply with all applicable laws and regulations in using our Service and in engaging in all other activities arising from, relating to or connected with these Terms, including, without limitation, contacting other users of our Service; (d) must not use our Service if you have ever been convicted of an offence of a sexual nature or if you have any such charges currently pending against you; and (e) you must own or otherwise have all rights necessary to license the content you submit and that promise to us that the posting and use of your content by us will not infringe or violate the rights of any third party. To the fullest extent permitted by applicable law, we are not responsible to you for any damages you may suffer because of your breach of this clause.
E. Your Responsibilities
You are solely responsible for your interactions with other users of our Service, including the content of the materials you post on the Service and in your messages to other users of the Service. You must take reasonable precautions in all interactions with other users of the Service, particularly if you decide to meet offline or in person. In addition, WE STRONGLY RECOMMEND THAT YOU REVIEW ASHLEY MADISON'S SECURITY AND PRIVACY TIPS, POSTED AT https://blog.ashleymadison.com/security-privacy PRIOR TO USING THE SERVICE. You should not provide your personal or financial information (for example, your credit card or bank account information) to other users of our Platform. That information may be misused. There is no substitute for acting with caution when communicating with any stranger that would like to meet you.
F. User Disputes
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER USERS OF OUR PLATFORM AND OUR SERVICE. We reserve the right, but have no obligation, to monitor disputes between you and other users.
If you are a resident of the United States of America, you hereby agree to release us (and our subsidiaries and affiliated entities and ours (and their) shareholders, officers, directors, employees and agents, successors and assigns) from all claims, demands, damages, losses, liabilities of every kind, arising out of or in any way related to such disputes. If you are a California resident, Section 3.E.f. below applies to you.
G. Mobile Applications
Ashley Madison makes available mobile apps (collectively, the “Mobile Application”) to access the Platform via mobile devices. To use the Mobile Application you must have a mobile device that is compatible with Ashley Madison mobile service. Ashley Madison does not warrant that the Mobile Application will be compatible with your mobile device. Ashley Madison hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Application to any third-party or use the Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Application, or features that enforce limitations on use of the Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Application. You acknowledge that Ashley Madison may from time to time issue upgraded versions of the Mobile Application, and may automatically electronically upgrade the version of the Mobile Application that you are then currently using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Mobile Application or any copy thereof, and Ashley Madison and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Application (and any copy of the Mobile Application). Standard carrier data charges may apply to your use of the Mobile Application. You should contact your mobile phone carrier if you want to find out what standard carrier charges may apply. Please note that you may be required to pay an additional fee for use of the Ashley Madison mobile service. However, we will not charge you any such fees without your agreement to incur such fees in accordance with the applicable laws of your jurisdiction.
For US residents, the Mobile Application and all other software that is provided to you through the Platform and the Service and related documentation are "Commercial Items", as that term is defined under United States of America laws at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, if you are a government entity, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States or America and Canada.
The following additional terms and conditions apply with respect to any Mobile Application that Ashley Madison provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):
- You acknowledge that these Terms are between you and Ashley Madison only, and not with Apple, Inc. (“Apple”).
- Your use of Ashley Madison’s iOS App must comply with Apple’s then-current App Store Terms of Service which can be found at https://www.apple.com/legal/internet-services/itunes/us/terms.html
- Ashley Madison, and not Apple, is solely responsible for our iOS App and the services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
- You agree that Ashley Madison, and not Apple, is responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS App.
- You agree that Ashley Madison, and not Apple, shall be responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. or Canadian Government embargo, or that has been designated by the U.S. Government or the Canadian Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government or Canadian Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of Ashley Madison’s iOS App. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS App as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Mobile Application that Ashley Madison provides to you designed for use on an Android-powered mobile device (an “Android App”):
- You acknowledge that these Terms are between you and Ashley Madison only, and not with Google, Inc. (“Google”).
- Your use of Ashley Madison’s Android App must comply with Google’s then-current Android Market Terms of Service which can be found at https://www.google.com/mobile/android/market-tos.html
- Google is only a provider of the Android Market where you obtained the Android App. Ashley Madison, and not Google, is solely responsible for Ashley Madison’s Android App and the services and content available thereon. Google has no obligation or liability to you with respect to Ashley Madison’s Android App or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to Ashley Madison’s Android App.
H. Geo-Location Terms
SECTION 2 - THE ASHLEY MADISON SERVICE
A. Categories of Services
Users of the Service may become "Guests" or "Full Members" of the Service. Guests are allowed access to a minimal level of the Service's features and are not charged by us for the use of the features they can access. Full Members are provided with access to additional features of the Service that are not available to Guests. Full access to the Service can be achieved by purchasing credits or subscribing to the Service through any of the available credit or subscription membership packages.
You may become a Full Member by purchasing a credit package. Credits are allotments which are stored in your account for immediate or future use. Credits are good towards the purchase of features within the Service.
Please be advised that we add and change features on the Service from time to time and that the value (in credits) of such features may change at any time.
To the extent offered in your jurisdiction, you may also become a Full Member by purchasing one of our subscription packages. Additional terms and conditions apply to our subscription packages which can be accessed here
Please note that Full Members are not charged by us for the features that are free to Guests; however, some features available to Guests may not be accessible when a Full Member has run out of credits or ended their subscription. For example, if a Full Member runs out of credits or has ended their subscription, the Full Member will no longer be able to access their messages including messages the Full Member was able to access as a Guest.
B. Registering to Use our Service, Fees and Payments
If we receive cash or check payment for an incorrect amount or non-specified currency payments, we will notify you of such incorrect payment. If such incorrect payment is not rectified within thirty (30) days of providing such notice, we reserve the right to adjust or credit your account with a pro-rated number of credits based on the funds received, converted to the specified currency at a reasonable market exchange rate at the time of processing. Accounts may not be transferred from one client of the Service to another client.
You understand and agree that it is a condition of your use of the Platform and the Service and of your membership that all of the information you provide to us when you are signing up and providing your Profile is correct, current, accurate and complete. If you provide any misleading or false information to us, your right to use the Platform is invalid and your membership is terminated and void.
C. Cancellation of Your Account for Non-Usage.
If you have not logged into your account within the prior twelve (12) month period we reserve the right to cancel your account. If your account is canceled for non-activity, your account will be cancelled and all credits in your account will expire. You can confirm your account balance at any time by clicking on "Manage Profile" or by using the Contact Form and providing us with your account details. THE ABOVE CANCELLATION PROVISION DOES NOT APPLY TO DORMANT ACCOUNTS THAT HAVE AN ACTIVE SUBSCRIPTION ASSOCIATED WITH THEM.
D. Automatic Credit and Subscription Renewals and Cancellation
If you select the automatic credit renewal option when purchasing your credits, we will use an automatic credit “top up” feature to help you keep your account active. In the event that any action you take or features you use on the Platform result in you having a "zero balance" or a negative balance of credits, WE WILL AUTOMATICALLY PURCHASE (WITHOUT FURTHER AUTHORIZATION FROM YOU ONCE YOU OPT IN) FOR YOU THE SAME CREDIT PACKAGE THAT YOU HAD PURCHASED PREVIOUSLY USING THE SAME PAYMENT METHOD YOU PREVIOUSLY USED. TO OPT OUT OF THIS FEATURE GO TO THE “PROFILE OPTIONS” page www.ashleymadison.com/app/private/member/settings/profile.p when logged into your account.
Unless advised otherwise, all subscription packages are subject to automatic renewal for the same term as originally selected.
E. Member Initiated Contact (MIC) and Cancellation
If you become Full Member through the purchase or Credits, you may subscribe to the MIC feature on a month-to-month basis. MIC provides you unlimited access to read and respond to unsolicited member initiated communications and/or communications you have initiated.
If you have subscribed to MIC, your credit card will be charged for the initial thirty (30) days of MIC at the time of purchase. AT THE END OF THIS THIRTY (30) DAY PERIOD, AND EVERY THIRTY (30) DAYS THEREAFTER, WE WILL AUTOMATICALLY CHARGE YOUR CREDIT CARD THE MONTHLY MIC SUBSCRIPTION FEE IDENTIFIED AT THE TIME OF PURCHACE.
YOU MAY OPT OUT OF YOUR MIC SUBSCRIPTION AT ANY TIME THROUGH YOUR MEMBER PROFILE'S “CREDIT HISTORY” PAGE.
F. Priority Man and Cancellation
If you have subscribed to Priority Man or a subscription to Priority Man is included in the package you have purchased, your profile will on a recurrent basis receive Priority Man status in the search results of women searching for men in your geographic area. This includes highlight colouring and other features that indicate its priority status as may be determined by us (relative to users who do not subscribe to the Priority Man service). The frequency by which your profile will be shown in the Priority Man will depend on the number of subscribers to the Priority Man service in your geographic area.
The Priority Man service is provided month-to-month on a subscription basis. If you have subscribed to Priority Man, your credit card will be charged for the initial thirty (30) days of Priority Man at the time of purchase. AT THE END OF THIS THIRTY (30) DAY PERIOD OR THE THIRTY (30) DAY PERIOD INCLUDED WITH THE PURCHASE OF YOUR CREDITS, AS APPLICABLE, AND EVERY THIRTY (30) DAYS THEREAFTER, WE WILL AUTOMATICALLY CHARGE YOUR CREDIT CARD THE MONTHLY SUBSCRIPTION FEE IDENTIFIED AT THE TIME YOU PURCHASED YOUR PRIORITY MAN SUBSCRIPTION.
YOU MAY OPT OUT OF YOUR PRIORITY MAN SUBSCRIPTION AT ANY TIME THROUGH YOUR MEMBER PROFILE'S “CREDIT HISTORY” PAGE.
G. Refund Policy
Unless otherwise required by applicable law, you agree that your purchases, including your purchase of credits and subscriptions, are non-refundable except where we have materially breached these Terms in which case you may be entitled to a refund.
Please be aware that CREDITS DO NOT HAVE CASH VALUE, ARE NOT TRANSFERABLE NOR REDEEMABLE FOR CASH. SUBSCRIPTIONS ARE NOT TRANSFERABLE BETWEEN ACCOUNTS.
H. Credit Card Chargeback Policy
We protect our business and credit card processors, banks and other institutions providing related services to us from fraudulent credit card chargebacks. A credit card chargeback is when the holder of a credit card disputes a charge with a credit card processor, bank or other institution and the charge is charged back to the business. The chargeback is fraudulent if the credit card holder disputes a charge to a legitimate charge for services the holder has purchased. You understand and agree that in the event you attempt to create a fraudulent credit card chargeback, we will work with the relevant credit card processor, bank or other institution and law enforcement authorities to investigate the matter. Our assistance may include providing details about the profiles, card authentication and communications with or related to our Service or other users or members. Engaging in activities aimed at reversing a legitimate charge is illegal. You understand and acknowledge that you can be prosecuted for such activity and we reserve the right to reclaim any fees and costs we incur in responding to fraudulently filed chargebacks.
I. Other Aspects of the Ashley Madison Service – For Your Entertainment
Our Platform and our Service give users the opportunity to explore their fantasies and to interact with others in the Platform. However, there is no guarantee you will find a date or partner on our Platform or by using our Service. Our Platform and our Service are also intended to provide users with amusement and entertainment. You agree that some of the features of our Platform and our Service may be used for such amusement and entertainment purposes.
J. Others Using the Platform for Entertainment
You also understand and agree that there are users and members on the Platform that use and subscribe to our Service solely for entertainment purposes. Those users and subscribers are not seeking physical meetings with anyone they meet on the Service, but consider their communications with users and members to be for their amusement.
You acknowledge and agree that any profiles of users and members, as well as, communications from such persons may not be true, accurate or authentic and may be exaggerated or fantasy. You acknowledge and understand that you may be communicating with such persons and that we are not responsible for such communications.
K. Non-Commercial Use
Our Platform and the Service is for personal use only and you may not use it in connection with any commercial purposes. Organizations, companies, and/or businesses may not use the Service or our Platform for any purpose. Illegal and/or unauthorized uses of our Platform, including without limitation prostitution and/solicitation, financial fraud, collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to our Platform may be investigated, and appropriate legal action may be taken, including, without limitation, civil, criminal, and injunctive redress. You understand and agree that use of our Platform is with our permission, which may be revoked at any time in our reasonable discretion.
L. Third Party Content, Links and Pages
In your use of our Service, you may access content from third parties ("Third Party Content"), either via our Service or through links to third party web sites. We do not control Third Party Content and make no representations or warranties about it. We do not endorse or accept any responsibility for any Third Party Content. You acknowledge and agree that by using our Service, you may be exposed to Third Party Content that is false, offensive, indecent, inaccurate, incomplete or otherwise objectionable. Third Party Content is subject to the privacy and security policies of those third parties, which may differ substantially from our privacy policies. You acknowledge and agree that Third Party Content is the sole responsibility of the authors or sites displaying such Third Party Content and under no circumstances will we be liable in any way for any Third Party Content, including, without limitation, any inaccuracies, errors or omissions in any Third Party Content or any losses, liabilities or damages of any kind arising out of or incurred as a result of the use of any Third Party Content posted, stored or transmitted via our Service. You must evaluate, and (as between us) bear all risks associated with Third Party Content, including, without limitation, profiles of other users of our Service.
M. User Name and Password
You will select a username and password when completing the registration process. You agree that you will not choose a name that may represent you as someone else or that may otherwise violate some third party’s rights. We may refuse to grant you a username that impersonates someone else, is protected by trademark or proprietary law, or is vulgar or otherwise offensive, as determined by us in our sole discretion. Your username and password are not transferable and may not be assigned. You must keep your username and password confidential, and you are solely and fully responsible for all activities that occur under your username and password. You agree to: (a) immediately notify us of any unauthorized use of your username and password or any other breach of security; and (b) ensure that you log off from your account at the end of each session. We will not be liable for any loss or damage arising from your failure to comply with this section.
N. Proprietary Rights
a. Content is Protected by Law
You acknowledge and agree that all content and materials available on our Platform are protected by either our rights, or the rights of our licensors or other third parties, of publicity, copyright, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You may not use any of the marks, logos, domains and trademarks that you may find on our Platform, unless you have our written permission. Except for that information which is in the public domain or for which you have been given express written permission by us, you agree not to sell, license, loan, rent, modify, distribute, copy, reproduce, transmit, publicly display, broadcast, publicly perform, publish, adapt, edit, create derivative works, reverse engineer, alter, enhance or in any way exploit any of the Platform or content and materials in any manner. Notwithstanding the above, you may use the content and materials on our Platform in the course of your normal, personal, non-commercial use of our Service in accordance with these Terms. If you download or print a copy of any content for your personal use, you must retain all copyright and other proprietary notices contained on such content. You agree not to circumvent, disable or otherwise interfere with security related features of the Platform or features that prevent or restrict use or copying of content and materials or enforce limitations on use of the Platform or the content and materials therein. All rights not expressly granted herein are reserved.
b. Use of Content
You agree not to systematically retrieve data or other content or any materials from our Platform to create or compile, directly or indirectly, a collection, compilation, database, directory or the like, whether by manual methods, through the use of "bots" or otherwise. You agree not to use any of our trademarks or logos as metatags on other web sites. You agree not to display any of our Platform in a frame (or any of our content via in-line links) without our express written permission, which may be requested by contacting us at [email protected] You may, however, establish ordinary links to the homepage of our Platform without our written permission.
c. Content – AS-IS
All of the content on our Platform is provided “AS IS”. All content is the responsibility of the person that originated such content. You understand and agree that under no circumstances will we be liable for any losses, liabilities or damages incurred as a result of your use of any content on our Platform.
O. Discontinuance of Service
We reserve the right at any time to modify or discontinue, temporarily or permanently, any portion of our Service including where such use may breach any applicable laws. We will endeavor to provide you with 30 days’ prior written notice before such changes become effective. You acknowledge and agree that we will not be liable to you or to any third party for any modification or discontinuance of our Service.
P. Blocking of IP Addresses
In order to protect the integrity of the Service, we reserve the right at any time, in our reasonable discretion, to block users from certain IP addresses from accessing our Platform where required by law or to avoid a breach of these Terms.
The Service may provide, or third parties may provide, links, including, without limitation, banner ads and hyperlinks, to other World Wide Web sites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You acknowledge and agree that we are not responsible for any use of your personal information by such third parties. Such third parties have their own privacy policies and procedures. You should check those privacy policies and procedures before you provide any information to them. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, goods or services available on or through any such site or resource.
Information and services that are provided on the Platform and the Service in a language other than English are only provided as a convenience to you when available. All services to be provided, all obligations of Ashley Madison and all communication between the parties with respect to these Terms will be in the English language. Web pages which are translated from English to other languages may contain errors / omissions. If for any reason the translated text is incorrect, or misleading, the English text shall be deemed as the official version.
S. Customer Service
Our customer service representatives are available to answer questions you may have about your Service and to enhance your experience using our Service and its features. You may not be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or otherwise behave inappropriately when communicating with our customer service representatives. If we determine, in our reasonable discretion, that your behavior towards any of our representatives is at any time inappropriate, we reserve the right to immediately terminate your access to our Platform and your membership to our Service and you will not be entitled to any refund of unused credits or subscription fees unless required by applicable law.
T. Email Communications
Subject at all times to our obligations regarding email communications in your respective jurisdiction, you agree that: (i) we and other sites we operate (or our agents) may send you email communications that include messages about the Service and your membership account with us, and services offered by our other sites and third parties; and (ii) any notice, agreements, and other communications we send to you electronically will satisfy any legal requirements, including, without limitation, that such communications be in writing.
You may opt out of receiving these notifications from us by clicking the “Unsubscribe from Email Notifications” link located at the bottom of each email we send you. Please be advised that you cannot opt out from operational emails (i.e. non-promotional communications) pertaining your account.
You acknowledge and agree that we may terminate your access to our Service if (a) you breach these Terms; (b) where required by law; or (c) where we reasonably consider there has been a breach of these Terms or a breach of applicable laws. You understand and agree that we are not required, and may be prohibited, from disclosing to you the reason for termination of your access to our Service. You acknowledge and agree that termination of your access to our Service in these circumstances may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete any of your accounts and all related information and files in such accounts and/or bar any further access to such files or our Service. Further, you acknowledge and agree that unless required by applicable law we will not be liable to you or any third party for any costs or damages of any kind for or resulting from any termination of your access to our Service. Unless otherwise required by applicable law, you will not be entitled to a refund of unused credit or subscription fees paid upon termination of your access to our Service by us in the circumstances described in this clause. You may terminate your access to the Service at any time via our Platform or by sending us written or email notice of termination. Unless otherwise required by applicable law, you will not be entitled to any refund of unused credits or subscription fees upon termination of your access to our Service other than for our material breach of these Terms.
V. How to Delete/Deactivate Your Account
In the event you would like to cease using the Service and delete or deactivate your account, you have the following two options:
a. Deactivate My Account:
b. Full Delete:
If you select this option, your profile will be completely deleted, including, subject to the qualification below, all personal information related thereto. Specifically, (i) your profile will no longer be viewable by other users or come up in search results, and (ii) all personal information associated with your account, including your message history, will be completely deleted in accordance with ruby’s data retention schedule, meaning that some of your usage history may be kept for up to six months. If you select this option, your account cannot be restored and any unused credits associated with your account will immediately expire without refund. Please note it may take up to forty eight (48) hours for your information to no longer be visible on the Service.
To select either of the foregoing options, please go to our deactivation page https://www.ashleymadison.com/app/private/member/manage/remove.p while logged into your account on the desktop version of the site.
A. Governing Law
Except as otherwise provided in this section or as otherwise required by law, these Terms involve transactions between the parties in interstate commerce and shall be governed by the Federal Arbitration Act, 9 USC § 1-19 of the United States of America. Judgment upon any interim or final award shall be entered and confirmed in any court or tribunal of competent jurisdiction. The substantive law of the State of New York (excluding its conflicts of law provisions) shall apply to all Disputes and these Terms. If there is a difference between the Federal Arbitration Act and New York law, the Federal Arbitration Act controls. In any circumstances where the foregoing Terms permit the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within New York, New York for such purpose.
For Canadian residents (except Quebec), these Terms will be governed by, interpreted and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. You irrevocably attorn and submit to the exclusive jurisdiction of the Ontario courts situated in the City of Toronto and waive any objection to the venue of any proceeding in such court or that such court provides an inappropriate forum.
For Quebec residents, these Terms will be governed by, interpreted and enforced in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein.
For Australian residents, these Terms will be governed by, interpreted and enforced in accordance with the laws of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
B. Entire Agreement
C. Disclaimers of Warranties
The following provision may not be fully applicable in Quebec and to users to whom the Quebec Consumer Protection Act applies.
YOU AGREE THAT:
- OUR SERVICE AND ALL CONTENT IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY.
- WHILST WE TAKE REASONABLE COMMERCIAL EFFORTS TO PROVIDE THE SERVICE TO YOU, WE CANNOT PROMISE OR WARRANT THAT (A) OUR SERVICE WILL MEET YOUR REQUIREMENTS; (B) OUR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) ANY INFORMATION THAT YOU MAY OBTAIN ON OUR SERVICE WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OR RELIABILITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH OR IN CONNECTION WITH OUR SERVICE WILL MEET YOUR EXPECTATIONS; (E) ANY INFORMATION YOU PROVIDE TO OTHER USERS WILL NOT BE DISCLOSED TO THIRD PARTIES; (F) ANY PROFILE ON OUR PLATFORM IS ACCURATE, UP TO DATE OR AUTHENTIC; (G) ANY MATERIAL OR FILES THAT YOU CAN DOWNLOAD FROM THE INTERNET WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MAY HAVE DAMAGING; (H) THIRD PARTIES WILL NOT USE YOUR CONFIDENTIAL INFORMATION IN AN UNAUTHORIZED MANNER; OR (I) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED. WE ARE NOT RESPONSIBLE FOR ANY PROBLEMS OR TECHNICAL MALFUNCTION OF ANY TELEPHONE NETWORK OR LINES, COMPUTER ONLINE SYSTEMS, SERVERS OR PROVIDERS, COMPUTER EQUIPMENT, SOFTWARE, FAILURE OF EMAIL OR PLAYERS ON ACCOUNT OF TECHNICAL PROBLEMS OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE OR COMBINATION THEREOF, INCLUDING WITHOUT LIMITATION INJURY OR DAMAGE TO USERS OR TO ANY OTHER PERSON'S COMPUTER RELATED TO OR RESULTING FROM PARTICIPATING OR DOWNLOADING MATERIALS IN CONNECTION WITH OUR PLATFORM AND/OR IN CONNECTION WITH THE SERVICE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, WE NOR ANY OF OUR AFFILIATES, ADVERTISERS, PROMOTERS OR DISTRIBUTION PARTNERS WILL BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, RESULTING FROM ANYONE'S USE OF OUR PLATFORM OR THE SERVICE, ANY CONTENT POSTED ON OUR PLATFORM OR TRANSMITTED TO USERS, ANY PRODUCTS OR SERVICE PROVIDED BY THIRD PARTIES OR ANY CONDUCT OR INTERACTIONS BETWEEN USERS OF OUR PLATFORM, WHETHER ONLINE OR OFFLINE.
- IF YOU ACCESS OR TRANSMIT ANY CONTENT THROUGH THE USE OF OUR SERVICE, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. WE ARE NOT RESPONSIBLE FOR ANY INCORRECT OR INACCURATE CONTENT POSTED ON OUR PLATFORM OR IN CONNECTION WITH THE SERVICE, WHETHER CAUSED BY USERS OF OUR PLATFORM OR BY ANY OF THE EQUIPMENT OR PROGRAMMING ASSOCIATED WITH OR UTILIZED IN THE SERVICE. WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF OUR PLATFORM OR THE SERVICE. WE ASSUME NO RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS.
D. Our Limitations
We are not responsible for any damage or harm resulting from your interactions with other users of our Service. You understand and acknowledge that we do not pre-approve any of our users or members nor do we in any way inquire into the backgrounds of the users of the Service or attempt to verify their statements. We make no representations or warranties as to the conduct of our users or their compatibility with any current or future users. WE DO NOT PERFORM CRIMINAL OR ANY OTHER FORM OF BACKGROUND CHECKS ON OUR USERS OR MEMBERS. It is your responsibility to investigate the background, financial status, criminal background, character and all other aspects that might affect whether or not you want to interact with a user or member on our Service. We reserve the right, but have no obligation, to monitor all interactions between you and other users of our Service and to take any action in good faith to restrict access to or the availability of any material that we or another user of our Service may consider to be illegal, obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable and you hereby expressly consent to the foregoing. Email messages sent between you and other users of the Service that are not readily accessible to the general public may be reviewed by us for compliance with these Terms, but will be treated by us as private to the extent required by applicable law. IN NO EVENT SHALL WE BE LIABLE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, PUNITIVE, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO YOUR CONDUCT OR THE CONDUCT OF ANY OTHER USER, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR PERSONS YOU MEET THROUGH THE SERVICE. We are not responsible for, and cannot control, the use by others of any information which you provide to them and you should use caution in selecting the personal information you provide to others through the Service. We cannot and do not assume any responsibility for the content of messages sent by other users of the Service. We are not responsible for the accuracy of information communicated to you on the Service or for the content of any communications you may receive from other users. We reserve the right to investigate and take appropriate lawful action against anyone who violates these Terms, including without limitation, removing the offending communication from the Service, terminating the violator's access to the Platform and contacting and disclosing information to the relevant authorities and pursuant to legal process. We will act reasonably in deciding what action, if any, to take, however, we are under no obligation to take any such action.
E. Limits of Liability
The following provision may not be fully applicable in Quebec and to users to whom the Quebec Consumer Protection Act applies.
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, PUNATIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM, RELATING TO OR CONNECTED WITH: (A) THE USE OR INABILITY TO USE OUR SERVICE; (B) THE COST OF REPLACEMENT OF ANY GOODS, SERVICES OR INFORMATION PURCHASED OR OBTAINED AS A RESULT OF ANY INFORMATION OBTAINED FROM OR TRANSACTIONS ENTERED INTO THROUGH OR FROM OUR SERVICE; (C) UNAUTHORIZED ACCESS TO OR PERMITTED DISCLOSURE OR ALTERATION OF YOUR CONTENT; (D) STATEMENTS, CONDUCT OR OMISSIONS OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY ON OUR SERVICE; OR (E) ACTIONS OR INACTIONS OF OTHER USERS OF OUR PLATFORM OR OUR SERVICE OR ANY OTHER THIRD PARTIES THAT WE DO NOT CONTROL FOR ANY REASON.
- WE WILL NOT BE LIABLE FOR ANY FAILURE OR DELAY IN PERFORMING UNDER THESE TERMS WHERE SUCH FAILURE OR DELAY IS DUE TO CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING NATURAL CATASTROPHES, GOVERNMENTAL ACTS OR OMISSIONS, LAWS OR REGULATIONS, TERRORISM, LABOR STRIKES OR DIFFICULTIES, COMMUNICATION SYSTEM BREAKDOWNS, HARDWARE OR SOFTWARE FAILURES, TRANSPORTATION STOPPAGES OR SLOWDOWNS OR THE INABILITY TO PROCURE SUPPLIES OR MATERIALS.
- TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF NOTWITHSTANDING THE FOREGOING WE ARE FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY, OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY IN ANY MATTER ARISING FROM, RELATING TO OR CONNECTED WITH OUR SERVICE OR THESE TERMS WILL NOT EXCEED THE SUM OF FIVE THOUSAND ($5,000) DOLLARS.
- NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT ANY OF OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, INCLUDING LIABILITY IN RELATION TO DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR WILFUL OR RECKLESS MISCONDUCT OR FRAUD OR FRAUDULENT MISREPRESENTATION, IN WHICH CASE, OUR LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN GUARANTEES, CONDITIONS, REPRESENTATIONS, WARRANTIES OR TERMS IMPLIED OR IMPOSED BY APPLICABLE LAW, AND DO NOT ALLOW LIMITATIONS ON HOW LONG ANY SUCH GUARANTEE, CONDITION, REPRESENTATION, WARRANTY OR TERM MAY LAST. SOME JURISDICTIONS ALSO DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN FORMS OF DAMAGES. ACCORDINGLY, SOME OF THE LIMITATIONS SET OUT HEREIN MAY NOT APPLY TO YOU. HOWEVER, NOTHING IN THESE TERMS EXCLUDES, RESTRICTS OR MODIFIES ANY GUARANTEE, CONDITION, REPRESENTATION, WARRANTY OR TERM WHICH CANNOT LAWFULLY BE EXCLUDED, RESTRICTED OR MODIFIED. THESE LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND SHALL SURVIVE TERMINATION OF THESE TERMS. IF ANY GUARANTEE, CONDITION, REPRESENTATION, WARRANTY OR TERM IS IMPLIED OR IMPOSED BY ANY APPLICABLE LAW AND CANNOT BE EXCLUDED (A "NON-EXCLUDABLE PROVISION"), AND WE ARE ABLE TO LIMIT YOUR REMEDY FOR A BREACH OF THE NON-EXCLUDABLE PROVISION, THEN OUR LIABILITY FOR BREACH OF THE NON-EXCLUDABLE PROVISION IS LIMITED EXCLUSIVELY (SO FAR AS APPLICABLE LAWS DO NOT PROHIBIT) TO, AT OUR OPTION, THE SUPPLYING OF THE SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
- IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
The following provision may not be fully applicable in Quebec and to users to whom the Quebec Consumer Protection Act applies.
To the fullest extent permitted by applicable law, you agree to indemnify us and our affiliates, directors, officers, employees, agents, customers and third parties against any claim, demand, cause of action, debt, loss, costs, liabilities and expenses (including reasonable legal fees) relating to, or arising in connection with, directly or indirectly, (a) your use of or inability to use our Platform or Services; (b) any posts made by you; (c) your infringement of the intellectual property rights, or any other rights, of any party; (d) your violation of any of these Terms and (e) your violation of any applicable laws, rules or regulations.
G. Digital Millennium Copyright Act (“DMCA”)
We respect the intellectual property rights of others, and we ask you to do the same. We may, in appropriate circumstances and at our reasonable discretion, terminate service and/or access to the Platform for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Platform, please provide our designated agent the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Platform, and information reasonably sufficient to permit us to locate the material.
- Information reasonably sufficient to permit us to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Our agent for notice of claims of copyright or trademark infringement on the Platform can be reached as follows:
ruby Life Inc.
Attention: General Counsel
PO Box 67027Toronto, ON Canada M4P 1E4.
Email: [email protected]
Please also note that for copyright infringements under Section 512(f) of the U.S. Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
H. Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received. If you receive such notice from us, you may provide us with a counter-notification in writing to our designated agent that includes all of the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
I. Termination of Repeat Infringers
We reserve the right, in our sole discretion, to terminate the account or access of any user of our Platform and/or Service who is the subject or repeated DMCA or other infringement notifications.
You do not have the right to assign these Terms or any of your rights hereunder or to our Service to anyone. We have the right to assign any or all of its rights and obligations under these Terms. Provided such rights and obligations are assumed by such third party, we shall be relieved of any and all liability under these Terms and in such event you hereby agree to release us of all liability, claims, charges, damages and causes of action.
K. California Consumer Notice
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The Platform and Service are provided by ruby Life Inc. d/b/a Ashley Madison. If you have a question or complaint regarding the Platform or Service, please contact Customer Service at [email protected]. You may also contact us by writing us at ruby Life Inc., PO Box 67027, Toronto, Ontario Canada M4P 1E4, Attention: Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
L. Communication in English
For Quebec residents, the parties to these Terms hereby confirm their express wish that this Agreement, as well as all other documents related to it, including but not limited to all confirmations, notices, waivers, consents and other communications between the parties in connection with this Agreement be in the English language only and declare themselves satisfied with this; les parties aux présentes conditions confirment leur volonté expresse de voir la présente convention, de même que tous les documents qui s’y rattachent, incluant, mais non de façon limitative, tous les confirmations, avis, renonciations, consentements et autres communications entre les parties, rédigés en langue anglaise seulement et s’en déclarent satisfaites.
N. Export Controls
Software and content provided through our Platform and our Service is subject to export controls of the United States of America and other applicable jurisdictions. The United States Department of Commerce prohibits export or diversion of software and certain content to specified countries and persons. No software or content from the Services may be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the U.S. has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using any such software or content, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list and that you will not license or otherwise permit anyone in any such country or on any such list to receive software or content that is subject to export control.
4.- ARBITRATION AND CLASS ACTION WAIVER
Please read this carefully. It affects your rights. Depending on your place of residence, these terms may not apply to you. For example, the following terms may not be fully applicable in Quebec and to users to whom the Quebec Consumer Protection Act applies.
For US residents, all disputes, controversies, causes of action (in tort, contract, by statute or otherwise), including, without limitation, Disputes arising from or relating to this Arbitration Provision (including the interpretation, breach, termination and invalidity thereof) or the relationship that results from these Terms (collectively, “Disputes”) shall be resolved by binding arbitration by a single independent and impartial arbitrator under the applicable Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes of the American Arbitration Association (“AAA”).
For residents in all other jurisdictions, all Disputes shall be resolved by binding arbitration by a single independent and impartial arbitrator under the applicable Commercial Dispute Resolution Procedures and Supplementary Procedures for Consumer-Related Disputes of the International Chamber of Commerce (“ICC”).
Arbitration replaces the right to go to court, and therefore the parties waive any right that you or Ashley Madison might otherwise have had to a jury trial or the opportunity to litigate any claims in court before either a judge or jury. Notwithstanding the foregoing, Ashley Madison reserves the right to pursue the protection of its intellectual property rights and confidential information and to stop other illegal activities through immediate injunctive relief or other equitable relief at any time and without first resorting to informal procedures or arbitration, through any courts of competent jurisdiction.
The exclusive venue for the arbitration shall be New York, New York if claimant is a resident of the United States of America. The parties will agree on a reasonable location, in the event that New York is an inappropriate forum. The parties will endeavor to minimize the need for long distance travel through use of telephonic communications and submission of documents as permitted under the applicable rules for Expedited Procedures. The official language of the arbitration shall be English.
C. Small Claims
Both parties retain the right to file any claim that is not aggregated with the claim of any other persons and whose amount in controversy is properly within the jurisdiction of a court which is limited to adjudicated small claims.
D. Class and Consolidated Claims Waiver
To the extent permitted under applicable law, it is agreed that neither party shall have the right to participate as a class representative or class member with respect to any Disputes subject to arbitration under these Terms or any Dispute between the parties. To the extent permitted under applicable law, the parties also waive any right to assert consolidated claims with respect to any Disputes subject to arbitration under these Terms or any Dispute between the parties.
E. Limit of Liability
Liability for both parties is limited $5,000 in damages. Parties waive and the Arbitrator shall not be empowered to grant indirect, consequential, special, punitive or exemplary damages and/or damages or relief in excess of those permitted by these Terms unless the statute under which they are suing provides otherwise. An arbitration award rendered by the arbitrator may be entered in any court having jurisdiction for the purposes of enforcement.
F. Notice of Claims, Timing of Disputes and Nature of Award
Any Dispute shall be filed within one (1) year of the date the Dispute arose or occurred. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to any Dispute. Arbitration shall be commenced by filing a claim pursuant to the applicable AAA Rules, in the case of US residents, or the applicable ICC Rules, in the case of residents in all other jurisdictions. The arbitration shall be completed, barring extraordinary circumstances within ninety (90) days of the filing of the claim. The parties may grant reasonable continuance upon good cause shown. The Award shall be reasoned and shall be rendered within thirty (30) days of closure of the arbitration proceedings.
G. Discovery and Hearing Procedures
All parties have the right, at their own expense, to be represented by an attorney or spokesperson of their own choosing. Discovery shall be expeditiously completed within three (3) months of the time the parties are at issue. Each party shall produce relevant non-privileged documents requested by the other party. Discovery procedures available in court actions do not apply. The arbitrator shall grant oral and/or written discovery to preserve evidence or upon a showing of need. All discovery disputes shall be promptly submitted to and promptly resolved by the arbitrator. For a Dispute involving a United States resident, the parties may elect to use any of the Expedited Procedures of the Commercial Dispute Resolution Procedures or Supplementary Procedures for Consumer-Related Disputes of the AAA
H. Emergency and Provisional Remedies
Any party may seek a preliminary injunction or other provisional, injunctive, emergency or equitable relief (but not monetary relief) in a court of competent jurisdiction if, in its sole judgment, such relief is necessary to preserve the status quo or to prevent irreparable harm. The parties shall, despite seeking relief under this section, participate in good faith in the arbitration.
The arbitrator will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitration will not be confidential unless you request that it remain confidential.
J. Payment of Arbitration Fees and Costs
Ashley Madison will advance all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional costs that you incur in the arbitration, including, without limitation, costs association with attorneys or experts witnesses. The handling of fee arrangements and the payment of fees should be conducted by the Independent ADR Institution. If the arbitration is decided in your favor, you will not be required to reimburse Ashley Madison for any of the fees and costs it advanced. If the arbitration is decided in Ashley Madison’s favor, you shall reimburse Ashley Madison for its arbitration fees and costs, but only to the extent awardable in a judicial proceeding and permitted under the AAA or ICC, as applicable.
K. Waiver of Jury Trial
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under these Arbitration terms. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Ashley Madison in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND ASHLEY MADISON WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
L. Survival and Severability
These Arbitration terms shall survive the termination of your service with Ashley Madison. If any portion of this Arbitration provision is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force.