1. ACCEPTANCE OF TERMS AND CONDITIONS OF SERVICE
Welcome to POZ.com. CDM Publishing, LLC, D.B.A. as Smart + Strong and POZ (“Smart + Strong” or “POZ”) provides the Service to you (“you” or the “User”), subject to the following terms and conditions, as they may be amended from time to time (the “Ts and Cs”). Smart + Strong may amend or modify the Ts and Cs without notice, effective immediately, by posting the Ts and Cs on the POZ.com website or by otherwise notifying the User of the Ts and Cs. Smart + Strong reserves the right to discontinue, on a temporary or permanent basis, the Service (in whole or in part) without notice and without liability to the User. If the User uses the Service after Smart + Strong posts changes to the Ts and Cs, the User accepts the changed Ts and Cs.
By registering for or using the Service the User agrees to the Ts and Cs. Smart + Strong may offer certain services that will be governed by different or additional terms and conditions. All such additional terms and conditions are hereby incorporated by reference into the Ts and Cs.
2. DESCRIPTION OF SERVICE
Smart + Strong offers POZ Personals, a dating service for HIV positive people, and may offer other services, some of which may be available free of charge and some of which may only be available for paying members who subscribe to such portions of the Service, on its POZ.com website (the “Service”) for use only under a nonexclusive, nontransferable, and nonassignable license subject to the Ts and Cs. The User does not have the right to copy, sell, or otherwise exploit for any commercial purpose the Service (in whole or in part), access to the Service or use of the Service. Any service added to the Service shall be governed by the Ts and Cs, unless Smart + Strong expressly provides that such service shall be governed by different terms and conditions.
The Service is provided “AS IS.” Smart + Strong shall have no liability for any interruption, error, omission, deletion, defect, delay, or other problem with the Service.
3. ELIGIBILITY FOR MEMBERSHIP
The Service is available only to individuals who can form legally binding contracts under applicable law and are at least 18 years of age. If you do not qualify, please do not use the Service or any of our services that require your ability to form legally binding contracts. Smart + Strong may refuse access to the Service to anyone, at any time, in its sole and absolute discretion.
4. PAYING MEMBERSHIP, FEES, AND PAYMENTS
Although a substantial portion of the Service is currently available to Members free of charge, paying Premium Members now have access to additional services of the Service as set forth in the POZ Personals area of the POZ.com website, including the ability to initiate and receive instant message communications with other Premium Members. The current membership options and rates for paying Premium Membership are also set forth in such POZ Personals area; any changes to such options or rates will be posted in such POZ Personals area. If you are or become a Premium Member you shall pay the membership fees for use of the Premium Membership in the Service at the rates in effect when the fees are incurred. Premium Members will receive advance notice of any rate change. Smart + Strong will automatically bill all applicable fees to your credit card. Premium Membership fees will be billed at the beginning of each membership term and all renewal terms and are nonrefundable. Should you wish to use a different credit card for a renewal term payment, whether due to cancellation or expiration of the most recent card used, or otherwise, you may visit the Personals Menu on the personals. POZ.com website and follow the instructions for changing credit cards.
5. RENEWAL AND TERMINATION OF PREMIUM MEMBERSHIPS
Your Premium Membership will automatically renew for the same term as the then current term at the then current rate unless prior to the expiration of the then current term you notify Smart + Strong of your desire to terminate your Premium Membership by email at email@example.com or visit Personals Menu on the personals.POZ.com website and follow the instructions for termination.
Should the then current term of your Premium Membership be three (3) months, six (6) months, or twelve (12) months, Smart + Strong will, at least thirty (30) days prior to the expiration of the then current term, notify you that it intends to renew your Premium Membership.
6. USER’S OBLIGATIONS TO PROVIDE ACCURATE INFORMATION, CERTAIN OTHER USER OBLIGATIONS AND TERMINATION
The User represents and warrants that the User will: (a) provide true, accurate, complete, and up-to-date information about the User as prompted by the components of the Service and in the registration process; and (b) maintain and in a timely manner update this information, including, without limitation, credit card information, so that it is at all times true, accurate, complete and up to date. If any information provided by the User is untrue, inaccurate, incomplete, or not up to date, if the User has violated the Ts and Cs, or if the User has violated the rights of Smart + Strong or others, then Smart + Strong may, without notice, terminate the User’s access and use of the Service. In addition, Smart + Strong reserves the right, in its sole and absolute discretion, for any or no reason, without liability to the User, to refuse access to the Service to the User.
It is the User’s responsibility to arrange, be responsible for and pay for the Internet access service connecting the User’s computer to the Internet to enable the User to have access to the Service.
7. USE OF INFORMATION, PRIVACY, CONTENT AND LICENSE
Your profile or username may not include telephone numbers, street addresses, last names, URLs, e-mail addresses or other identifiable contact information.
Smart + Strong retains the right to restrict the number and size of e-mails that a member of the Service may send to other members and the number of times and duration that a member of the Service may access the Service during any period.
You are advised not to join the Service if you are offended by adult-oriented conversations and material, as POZ Personals and other portions of the Service may include such content.
In an effort to promote respect for the sensitivities of all the members of the service, Smart + Strong reserves the right not to post any photograph that Smart + Strong does not consider appropriate.
To enable Smart + Strong to use and publish your information that you choose to make publicly available on POZ.com in connection with your use of the Service (“User Information”), the User grants Smart + Strong a nonexclusive, worldwide, perpetual, irrevocable, royalty-free, sublicenseable (through multiple tiers) right (including all moral rights) and license to use, reproduce, modify, adapt, publish, perform, prepare derivative works from, distribute, and display User Information (in whole or in part) and to incorporate it in other works, in any form, media or technology now known or later developed, for the full term of any rights that may exist in User Information.
8. USE OF COPYRIGHTED, TRADEMARKED OR OTHER PROTECTED MATERIAL
The User may not post any information or items to POZ.com that are copied, in whole or in part, from third-party sources without the third party’s authorization. This includes:
- scanning of images created by others,
- copying, modifying, and linking to code, images, sound recordings, audiovisual works or text created by others,
- any other activities that would infringe the proprietary rights of others.
The User agrees not to post any material or items described above to POZ.com, including:
- as attachments to the User’s profile
Smart + Strong respects the intellectual property rights of others and requires that the User do so as well. Smart + Strong will terminate the membership of users who are repeat infringers of the intellectual property rights of others.
If a User or visitor to POZ.com believes his or her copyright or other intellectual property right has been infringed or violated by a posting on POZ.com, the User or visitor should send notification to Smart + Strong’s copyright agent, Jennifer Morton, immediately. To be effective, the notification must include:
- 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 work or other intellectual property claimed to have been infringed or violated, or if multiple allegedly infringed works at POZ.com 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 subject to infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Smart + Strong to locate the material,
- Information reasonably sufficient to permit Smart + Strong to contact the complaining party, such as address, telephone number and, if available, e-mail address at which the complaining party may be contacted,
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law,
- A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed or violated.
Or contact Smart + Strong’s copyright agent via telephone, postal mail or fax:
Smart + Strong
Attention: Jennifer Morton, Copyright Agent
212 West 35th Street, 8th Floor, New York, NY 10001-2508
Telephone: (212) 938-2058
Fax: (212) 675-8505
Smart + Strong will then take appropriate remedial action, which may include the removal of said infringing or violative material or items, from POZ.com. Please make all notifications of alleged infringements or violations promptly and allow Smart + Strong at least 48 hours to review and, if appropriate, remove the infringing or violative materials or items.
Smart + Strong is not responsible for material that is copied from the User’s profile or postings.
9. PASSWORD AND SECURITY
The User will select a password upon completing registration. The User authenticates the User’s session by entering the User’s password and the User’s ID. The User is responsible for maintaining the confidentiality of the password and for all activities in connection with the User’s password. The User must immediately notify Smart + Strong of any unauthorized use of the User’s password or any other breach of security.
To keep the User informed about Smart + Strong’s latest offers, we may notify the User of current promotions, specials and new additions to POZ.com; we may also send the User service announcements and administrative messages. The User may not unsubscribe to this information as it is part of the User’s membership. The User can, however, terminate the User’s membership at any time by notifying Smart + Strong at firstname.lastname@example.org of such termination; after such termination, the User will no longer receive such communications without the User’s prior consent.
10. ADDITIONAL USER RESPONSIBILITIES
The User shall comply with all applicable local, state, national and international laws and regulations in connection with the User’s use of the Service, shall not impersonate any person or entity or falsely represent User’s identity, and shall not interfere with the use of the Service by others, including, without limitation, by submitting any virus or other mechanism to the Service, by transmitting junk mail, spam, bombs or unsolicited e-mail or by attempting to cause the Service to crash. The User shall be solely responsible for the content that the User publishes, transmits or displays on POZ.com and for all communications in connection with the User’s use of the Service. Any medical or legal advice contained in e-mails, profiles or on POZ.com should not be considered a substitute for professional medical or legal advice or care and should be used only after consulting with a doctor or lawyer.
The User shall not use the Service to communicate any unlawful, annoying, harassing, defamatory, libelous, abusive, threatening, harmful, vulgar, obscene or tortious content (“content” for purposes of the Ts and Cs shall mean data, textual material, software, sound recordings, audiovisual works, photographs or other illustrations or other information or materials) of any kind or any content that invades, infringes or violates the personal or proprietary rights of any person or entity. The User shall not attempt to gain unauthorized access to other networks that may be connected to the Service.
You shall not use the Service to: post or otherwise make available any content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; harass or promote harassment of other members of the Service; send unsolicited e-mail; post or otherwise make available content you know to be inaccurate, illegal or misleading or that promotes conduct that is abusive, threatening, obscene, defamatory or libelous; post or otherwise make available content that exploits people under the age of 18 in a sexual, violent or other objectionable manner, or solicits personal information from anyone under the age of 18; in any way harm people under the age of 18; provide instructional content about illegal activities; post or otherwise make available content that you do not have the right to make available; solicit passwords or personally identifiable information for commercial or unlawful purposes from other members of the Service or users of POZ.com; or solicit other members of the Service or users of POZ.com to buy or sell any product or service without their prior consent.
The User shall indemnify and hold Smart + Strong harmless from any claim, demand, action, loss, cost or expense, including, without limitation, reasonable attorney’s fees, arising out of or in connection with the User’s use of the Service, the User’s breach of any representation or warranty in the Ts and Cs, the User’s violation or breach of the Ts and Cs or the User’s violation or infringement of the rights of others.
12. LINKS, ADVERTISING AND THIRD-PARTY SERVICES
Links to other websites may be provided in the Service. Certain Smart + Strong branded services may be provided by third parties. Smart + Strong will not be responsible for the availability of such external sites or third-party services, and does not endorse and is not responsible or liable for any content, advertising, service, product, or other material on or available from such external sites, POZ.com, or third parties or for any damages caused by or in connection with such content, advertising, service, product or other material available from such sites or third parties.
13. SMART + STRONG’S PROPRIETARY RIGHTS
Information made available to the User through the Service and the content of the Service may be protected under copyright, trademark, patent or other laws of the United States and foreign jurisdictions. User may use this information and content only as expressly authorized by Smart + Strong or the other proprietors of this information and content and may not reproduce, publicly display or perform, distribute or prepare derivative works of such information or content without express authorization of the proprietors thereof. “POZ,” “Smart + Strong,” and certain other trademarks and service marks displayed on the POZ.com website are trademarks and service marks of CDM Publishing, LLC, and the User shall not display or otherwise use for any purpose whatsoever such trademarks or service marks without the prior written permission of CDM Publishing, LLC.
14. CARE IN USING THE SERVICE
The User should use caution when using the Service. The User should be careful in using the Service to avoid misrepresentations and other harmful effects. Smart + Strong reserves the right at any time to screen or otherwise monitor content that is provided in connection with the Service and to delete or remove any content that violates the Ts and Cs or that Smart + Strong considers inappropriate, offensive, illegal, a threat to the rights or safety of any member of the Service or otherwise objectionable. Smart + Strong does not monitor that the people who are using the Service are bona fide, that confidential information will be treated as such or that the content provided is accurate, truthful, up-to-date or not misleading.
15. DISCLAIMERS AND DISCLAIMERS OF WARRANTIES
Use of the Service is at the User’s sole discretion and risk. The Service is provided “As Is” and “As Available.”
Models used for the promotion of POZ Personals, other portions of the Service, or POZ.com are not presumed to be HIV positive.
Smart + Strong makes no warranty that the Service will be uninterrupted, secure, free of viruses or other mechanisms, or error-free. Smart + Strong makes no warranty as to the results that may be obtained from the use of the Service or as to the accuracy or reliability of any information obtained through the Service. Smart + Strong makes no warranty regarding any transaction entered into through the Service.
Smart + Strong does not make any warranty as to the results that may be obtained from use of POZ.com or its content or as to the accuracy or reliability of any information obtained through use of POZ.com.
The User understands and agrees that any content and/or data downloaded or otherwise obtained through the use of the Service or POZ.com is at the User’s own discretion and risk and that the User will be solely responsible for any damage to the User’s computer system or loss of data that results from the download of such content and/or data.
Smart + Strong expressly disclaims all warranties, whether express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and noninfringement.
The above exclusions of warranties may not apply to the user in jurisdictions that do not permit such exclusions.
16. LIMITATION OF LIABILITY
Smart + Strong shall not be liable for any direct, indirect, incidental, punitive, exemplary, special or consequential damages of whatever kind and however caused, including, without limitation, personal injury or death, even if Smart + Strong knew or should have known of the possibility of such damages, resulting from the use or the inability to use the Service, POZ.com or the content posted or otherwise made available thereon or any interaction between Users, whether online or offline, errors, omissions, interruptions, deletions, defects, Internet or other delays, communication-line failures, thefts, destruction, or unauthorized access to or alteration of User or Member communications, or the interruption, suspension or termination of the Service or the POZ.com website, or the procurement of substitute goods or services or any products or services purchased or obtained or information received or transactions entered into through the Service or the POZ.com website. Smart + Strong’s cumulative liability to the User for all claims arsing in connection with the Service shall not exceed the total fees, if any, payable by the User for the specific service giving rise to the claim.
The above exclusions or limitations of liability may not apply to the User in jurisdictions that do not permit such exclusions or limitations.
The Ts and Cs shall be governed by the internal laws of the State of New York applicable to agreements made and to be fully performed therein, without giving effect to conflict of laws principles thereof. The User and Smart + Strong shall submit to the personal and exclusive jurisdiction of the courts located within the county of New York, State of New York.
If any provision of the Ts and Cs is held by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be enforced to the maximum extent permissible and the remaining provisions of the Ts and Cs shall remain in full force and effect.
The paragraph headings are for convenience only and shall have no effect upon the meaning of the paragraph.
Effective: December 17, 2009