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Terms & Conditions/User Agreement
Wreal, LTD d/b/a FyreTV®

Effective Date: July, 2007
Last Modified: July, 2014

 

  1. Preliminary Provisions
    1. Party Definitions and Introductory Terms - The operative parties referred to in this user Agreement are defined as follows:
      1. Wreal, LTD, together with its subsidiaries and affiliates (collectively, "Wreal" or “Publisher”) provides You access to Wreal service-related Web sites containing information and data available via Your computer, monitor, television set and/or other compatible device ("the Sites"), subject to the terms and conditions set forth below, including all documents, policies, and guidelines incorporated therein (the "Agreement"). When first-person pronouns are used in this Agreement, (Us, We, Our, Ours, etc.) these provisions are referring to Wreal, the Sites, or any other site that We may choose to publish in the future. Additionally, when the terms “The Site” or “Site” are used, these terms refer to any website published by Us, unless a site is specifically exempt from this policy. Our Site(s) and the Services provided by Us via the Site(s), including, but not limited to the operation of the Site and the transmission of media to You (the “Services”) may contain images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, and any other website or media content owned, operated, licensed, or controlled by the Publisher (collectively, “Materials”).
      2. You, the User and/or Subscriber - As the User of this Site and/or Services, this Agreement will refer to the User as “You” or through any second-person pronouns, such as “Yours,” etc. Hereinafter, the User of the Site and/or Services shall be referred to in applicable second-person pronouns. This Agreement also governs subscribers and customers of Our FyreTV® service (“Subscribers”). Our Subscribers may also be referred to as customers and in second-person pronouns in this Agreement. For purposes of this Agreement, all Subscribers are Users, but not all Users are Subscribers.
    2. What this Agreement is - This Agreement is a legal contract between You and Us. You should treat it as any other legal contract by reading its provisions carefully, as they will affect Your legal rights. By accessing the Site or Services in any manner, You are affirmatively agreeing to be bound by all of the terms contained in this Agreement. You may not pick and choose which terms apply to You. If You do not agree with all of the terms in this Agreement, You must cease all access and use of the Site and any other Services provided by Us.
    3. Consideration - Consideration for Your acquiescence to all of the provisions in this Agreement has been provided to You in the form of allowing You to use Our Site and Our Services. You agree that such consideration is both adequate, and that it is received upon Your viewing or using any portion of any of Our Site(s) and/or Services.
    4. Electronic Signatures / Assent Required:
      1. Nobody is authorized to access this Site or use the Services unless they have signed this Agreement. Such signature does not need to be a physical signature, since electronic acceptance of this Agreement is permitted by the Electronic Signatures in Global and National Commerce Act (E-Sign Act) and similar federal and state laws. You manifest Your acceptance of this Agreement by taking any act demonstrating Your assent thereto. Most likely, You have clicked or will click a button containing the words “I agree” or some similar syntax. You should understand that this has the same legal effect as You placing Your physical signature on any other legal contract. If You click any link, button, or other device provided to You in any part of Our Site(s)’_interface, then you have legally agreed to all of the terms and conditions of this Agreement. Additionally, by using any of Our Site(s) or Services in any manner, including uploading Your Content to Our Site, You understand and agree that We will consider such use to be Your affirmation of Your complete and unconditional acceptance of all of the terms in this Agreement.
      2. If You fail to sign this Agreement, You understand that You are an unauthorized user of the Site and Services, despite any payments made or subscriptions sold to You. No act or omission by Us should be interpreted as a waiver of the requirement that You assent to this Agreement. If You fail to do so, You are still bound by the terms of this Agreement by virtue of Your viewing the Site or using any portion of the Site or Our Services. However, if You fail to electronically sign this Agreement, You stipulate to and agree to pay Us $250 each time You access the Site as liquidated damages for unauthorized access and use, and You agree to pay all of Our costs and expenses, including Attorney’s fees and costs, incurred in collecting this unauthorized access fee from You.
    5. If You are seeking information regarding any illegal activities, please leave this Site immediately and do not attempt to use the Services. You acknowledge that You are aware of the community standards in your community, and You will only access the content on the Site and/or use the Services if You believe that the content on the Site does not offend the community standards prevalent in Your community.
    6. You agree not to use the Services or access the Site if doing so would violate the laws of Your state, province, or country.
    7. Revisions to this User Agreement:
      1. From time to time, We may revise this Agreement. We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to this Agreement are in force and enforceable immediately upon posting. Any updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect. To the extent any amendment of this Agreement is deemed ineffective or invalid by any court, the parties intend that the prior, effective version of this Agreement be considered valid and enforceable to the fullest extent.
      2. We agree that if We change anything in this Agreement, We will change the “Last Modified” date at the top of this Agreement so that it is immediately obvious that We have updated the Agreement. You agree to periodically re-visit this web page, and to use the “refresh” button on Your browser when doing so. You agree to note the date of the last revision to this Agreement. If the “Last Modified” date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it. If the “Last Modified” date has changed, then You can be certain that something in the Agreement has been changed, and that You need to re-review it in order to determine how Your rights and responsibilities may have been affected by the revisions.
      3. Waiver – if You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for Your failure to do so and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms. We are not responsible for Your neglect of Your legal rights.
    8. Incorporations by reference.
      Although this Agreement represents the primary terms and conditions of service for the Wreal network of websites, additional guidelines and rules are hereby incorporated by reference. The documents which can be found on Our Site, and which are specifically incorporated by reference, and are therefore part and parcel of this Agreement are the following:
      Our Privacy Policy (http://www.fyretv.com/site/privacy)
  2. Access and Membership
    1. Access and limited license – All Users may access certain public areas of the Site and Services. You need to provide Your own access to the Internet, and any Internet access or other fees that You incur to access Our Site and use Our Services are Your sole responsibility. This Agreement governs all public and non-public areas of the Site. Additionally, this Agreement governs Your use of equipment We may provide in connection with Our Site and Services.
    2. To access the Site or Services, You may be asked to provide certain registration details or other information. In order to verify Your identity, some of this information may be personal, private or detailed. In connection with completing the online registration form, You agree to provide true, accurate, current and complete information about Yourself as prompted by the registration form (such information being the "Registration Data"); and You further agree to maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times while You are Our customer and/or a User of the Site or Services. While We use reasonable efforts to protect the personal information of others from inadvertent release or misappropriation, We are not responsible for the intentional or criminal acts of third parties such as hackers or “phishers.”
    3. You must promptly inform Us of all changes, including, but not limited to, changes in Your address and changes in Your credit card used in connection with billing and/or payment for the Site and Services, if applicable. If You provide any information that is untrue, inaccurate, not current or incomplete, or if We or any of Our authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, We have the right to suspend or terminate Your account and refuse any and all current or future use of the Site and Services, as well as subject You to criminal and civil liability. You are responsible for any credit card charge backs, dishonored checks and any related fees that Site incurs with respect to Your account. If You fail to reimburse Us for any credit card charge backs, dishonored checks, or related fees within thirty (30) days of Our initial demand for reimbursement, You agree that You will pay Us one hundred dollars ($100) in additional liquidated damages as well as any costs incurred by Us for each fee incurred.
    4. Termination: Without limiting other remedies, the Site may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate Your use of the Site and refuse to provide Our Services to You, with or without advance notice, if: (a) the Site believes that You have breached any material term of this Agreement or the documents it incorporates by reference; (b) We are unable to verify or authenticate any information You provide to Us; (c) We believe, in Our sole discretion, that Your actions may cause legal liability for You, Our Users or Us; or (d) if the Site decides to cease operations or to otherwise discontinue any part of the Site or Services. Further, you agree that neither the Site nor any third party acting on Our behalf shall be liable to You for any termination of Your access to any part of the Site
    5. Additional provisions concerning termination and access to Our Site and Services are found elsewhere in this Agreement.
  3. Special Considerations Regarding Minors
    1. Age of Majority. In order to use the Site or any Services provided by the Publisher, You must have attained the age of majority in Your jurisdiction. You represent and warrant You are at least 18 or 21 years of age, depending on the age of majority in Your jurisdiction, and that You have the legal capacity to enter into this Agreement. If You are not at least 18 or 21 years of age, depending on the age of majority in Your jurisdiction, You must exit the Site immediately and may not use or access the Site or use the Services in any manner.
      1. You may be asked to verify Your birth date as a condition of entry onto the Site, pursuant to 28 U.S.C. § 1746. Accordingly, if You provided incorrect information on the age verification page, You committed an act of perjury, this perjury was recorded, and this perjury may be used against You in any court proceeding or other tribunal of any kind.
      2. We specifically disclaim any responsibility or liability for any misrepresentations regarding a User’s age.
      3. You represent and warrant that You will not allow any minor to access this Site or Services. Users should implement parental control protections, such as computer hardware, software, or filtering services, which may help Users to limit minors’ access to harmful material. You acknowledge that if Your computer or mobile device can be accessed by a minor, that You will take all precautions to keep Our Materials from being viewed by minors. You additionally acknowledge that if You are a parent, it is Your responsibility, and not Ours, to keep Our erotic content from being displayed to Your children or wards.
    2. In order to block access to Our Site and/or Services by minors via use of Your computer system, We recommend the following:
      1. Keep access to all controls, such as the remote for the FyreTV box, out of reach of minors.
      2. Since a valid credit card is required to gain access to this Site, keep Your credit cards out of reach of Your children, and monitor their use of cards which have been given to them.
      3. Use the following link to review a variety of lockout and filter software: www.filterreview.com.
      4. Contact Us, and We will block Your credit cards, IP address and email addresses from Our systems, if You desire. Information on how to contact Us can be found at Customer Support on the Sites.
    3. The Sites are registered and rated by ICRA in an effort to help block access by minors to adult content. Additionally, a valid credit card is required to gain access to the Sites. As such, please keep Your credit cards out of reach of Your children.
    4. WE HAVE A ZERO TOLERANCE POLICY FOR CHILD PORNOGRAPHY AND A ZERO TOLERANCE POLICY REGARDING PEDOPHILES OR ANY PEDOPHILIC ACTIVITY.
      1. You understand that all depictions of all persons on this Site and in all Materials produced, provided, or published by Us via the Services are of persons over the age of 18 as of the date of the production of the depiction. We take great measures to ensure that no underage models appear in any of Our Materials.
      2. If You seek any form of child pornography (including so-called “virtual” child pornography), You must exit this Site and cease using Our Services immediately. We do not provide this kind of material and We do not tolerate those who provide this kind of material nor do we tolerate consumers of this kind of material.
      3. In order to further Our zero-tolerance policy, all Users agree that You will report any images, real or simulated, that appear to depict minors on Our Site. If You see any images or other depictions that are questionable, You agree to report these images by emailing us at contact@fyretv.com.
      4. Include with Your report any appropriate evidence, including the date and time of identification. All reports will immediately be investigated and the appropriate action will be taken.
      5. We enthusiastically cooperate with any law-enforcement agency investigating child pornography. If You suspect other outside websites are participating in unlawful activities involving minors, please report them to http://www.asacp.org.
  4. Images and Content
    1. Our Site(s) and Services contain images and content, including but not limited to text, software, images, graphics, data, messages, or any other information, and any other website owned, operated, licensed, or controlled by Us.
    2. You acknowledge and stipulate that all of the Materials are expressive content that is fully protected by the First Amendment to the United States Constitution.
    3. You acknowledge and understand that some or all of the Materials on Our Site and transmitted via Our Services may be erotic in nature – and that they may contain graphic visual or textual depictions of sexual activity and nudity, graphic audio portions of the same kind of content, and textual descriptions of sexually oriented and sexually explicit activities. You acknowledge that You are aware of the nature of the Materials provided by or through the Site and that You are not offended by such Materials, and that You access the Site and Services freely, voluntarily, and willingly, and for Your own personal enjoyment.
    4. You understand that all of the information, data, text, images, audio, graphics, video, messages, or any other content on the Site or available via the Services, whether posted publicly or transmitted privately through Our Services or the services of third parties, are the sole responsibility of the party from whom the content originated. We do not control the content transmitted via Our Services, and as such We do not guarantee any accuracy, integrity, quality, or any other aspect of such posted content. You agree that by using the Site and Services covered by this Agreement, You very well may be exposed to content that You might find offensive, indecent, problematic, or otherwise objectionable. Under no circumstances will we accept liability in any way for any content for which we are not the content provider.
    5. We respect the intellectual property rights of all parties, and have adopted a policy regarding termination of repeat copyright infringers under the Digital Millennium Copyright Act. Copies of Our Repeat Infringer Policy are available to Our Members upon request.
    6. Section 230 Notice: You acknowledge Your responsibility to prevent minors under Your care from accessing harmful or inappropriate material. You agree not to allow minors to view any such content, and You agree to take responsible measures to prevent them from doing so. Numerous commercial online safety filters are available which may help users limit minors’ access to harmful or inappropriate material. Pursuant to 47 U.S.C. §230(d), You are hereby informed that You can research such services at websites such as: www.getwise.org or http://www.child-internet-safety.com/internet_filters.php, among others. Please note that We make no representation or warranty regarding any of the products or services referenced on such sites, and We recommend that You conduct appropriate due diligence before purchasing or installing any online filter. You agree to take particular steps to prevent minors from viewing Our Site or the content received via Our Services if Your computer or mobile device can be accessed by a minor. Finally, You agree that if You are a parent or guardian of a minor child, it is Your responsibility, not Ours, to keep any age-restricted content on Our Site or Services from being displayed or accessed by Your children or wards.
    7. Pursuant to the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c)(1), and court decisions interpreting the scope of the CDA, You acknowledge and understand that We operate as the provider of an interactive computer service. Thus, We are immune from, and cannot be held responsible for, claims arising from the publication or transmission of the content of other users and third parties. We do not create such content, and We are not responsible for the publication of remarks or communications of third-parties that may arguably rise to the level of being actionable under federal or state laws including, but not limited to, the publication of material that might be considered defamatory, or violative of privacy or publicity rights. Note, that federal law allows Us to remove or block any content found to be offensive, defamatory, obscene or otherwise violative of Our policies, without impacting Our status as an interactive computer service. Nothing contained in this Agreement is intended to limit or alter the immunity from claims provided by Section 230 of the Communications Decency Act, and no third parties are intended to benefit from this User Agreement between You and Us.
    8. License to Use Your Content: Certain areas of Our Site and Services may allow You to upload, post, or otherwise transmit images, text, and other data to Us, Our Site, or Our Services (“Your Content”). With the exception of personal financial and billing information, You hereby grant to Us the perpetual, unlimited, royalty-free, worldwide, non-exclusive, irrevocable, transferable license to run, display, copy, reproduce, publish, bundle, distribute, market, create derivative works of, adapt, translate, transmit, arrange, modify, sub-license, export, merge, transfer, loan, rent, lease, assign, share, outsource, host, make available to any person or otherwise use, any text, images, data, video or other information and content You provide on or through this web Site or Services or which is sent to Us or others by e-mail or other correspondence, for any purpose whatsoever. We shall not be subject to any obligations of confidentiality regarding any such information unless specifically agreed by Us in writing or required by law. Your Content becomes public knowledge and is not subject to any confidentiality immediately upon Your posting or otherwise transmitting Your Content via Our Site or Services. We shall not be obliged to delete any such information from the Site.
      1. You represent and warrant that You have the right to grant the license set out above.
      2. The copyright of all content uploaded by You is retained by You. You may not upload content for which You do not own the copyrights. We have a ZERO TOLERANCE policy for piracy.
      3. By uploading any photographs, videos or other media of Yourself or other subjects, You hereby swear that You own or control all intellectual property rights with respect to the uploaded contents; and You hereby irrevocably grant a non-exclusive right and license to Us to:
        1. Reproduce, transmit, communicate, display, or distribute Your Content, on or as part of Our Site(s), on other Internet sites, or elsewhere via our Services, for promotional or commercial purposes, by means of any technology, whether now known or hereafter to become known;
        2. Reproduce Your Content in digital form for display on or download from the Internet (alone or in combination with other works, including, but not limited to, text, data, images, photographs, illustrations, animation, graphics, video, or audio segments, and hypertext links);
        3. Adapt, modify, or alter Your Content or otherwise create derivative works based upon Your Content; and for all other reasonable promotional or commercial uses either as part of the operation of Our Site(s) or Services, or as a promotion or operation of any derivative or related businesses.
      4. We, at our sole discretion, may remove any content uploaded to the Site. We also reserve the right, but do not assume the responsibility, to restrict conduct which We deem in our discretion to be harmful to individual members, damaging to the communities that use Our Site or Services, or may be in violation of Our, or any third party’s, rights.
  5. Restrictions On Use Of Our Site and Services:
    1. You agree that You will only use the Site and Services for purposes expressly permitted and contemplated by this Agreement. You may not use the Site and Services for any other purposes, including commercial purposes, without Our express prior written consent.
    2. You shall not share or borrow user identification information credentials or passwords. If You use any part of the Site(s) that require a username or password, then You are responsible for maintaining the confidentiality of that username and password and for restricting access to Your computer. You also agree to accept responsibility for all activities that occur under Your account or password. In the event the confidentiality of Your account or password is compromised, You should notify Wreal immediately. Wreal reserves the right to take any and all action, as it deems necessary or reasonable, to ensure the security of the Sites and Your account, including without limitation terminating Your account, changing Your password, or requesting additional information to authorize transactions on Your account. Notwithstanding the above, Wreal may rely on the authority of anyone accessing Your account or using Your password, and in no event and under no circumstances shall Wreal be held liable to You for any liabilities or damages resulting from or arising out of (1) any action or inaction of Wreal under this provision, (2) any compromise of the confidentiality of Your account or password and (3) any unauthorized access to Your account or use of Your password.
    3. Any unauthorized use of the Sites will terminate the permission or license granted herein and may violate applicable law including copyright laws, trademark laws (including trade dress), and communications regulations and statutes. All violators will be prosecuted to the fullest extent of the law.
    4. You represent and warrant that that all information given to gain access to the Site and Services and/or download materials from it, including but not limited to Your identity, age and credit card numbers, is Your own.
    5. You shall not duplicate any part of Our Site or the Materials contained therein or received via the Services (except as expressly provided elsewhere in this Agreement).
    6. You shall not create any derivative works based on Our Site or any of the Materials contained therein or received via the Services, and You agree and stipulate that any and all derivative works are NOT “fair use.”
    7. You shall use the Material found in this Site for ENTERTAINMENT ONLY; no commercial display or reproduction of the Material is permitted under any circumstances, unless provided by separate written agreement.
    8. You shall not use Our Site or Services, or any of the Materials contained therein, for any public display, public performance, sale or rental, and You hereby agree and stipulate that any and all such uses are NOT “fair use.”
    9. You shall not circumvent any encryption or other security tools used anywhere on the Site or in conjunction with the Services (including the theft of user names and passwords or using another person’s user name and password in order to gain access to a restricted area of the Site).
    10. You shall not decompile, reverse engineer, modify or disassemble any of the software or hardware aspects of the Materials or Services except and only to the extent permitted by applicable law.
    11. You agree that if You learn of any of the following, You will notify Wreal immediately in writing:
      1. Use of Your account to gain access to the Sites or Services by a person not permitted by law to view the Sites;
      2. Any material on the Sites or Services that violates any other person’s copyright or other intellectual property rights;
      3. Any material on the Sites or Services that violates any applicable law or regulation;
      4. Any material on the Sites or Services that portrays an individual who is under the age of 18 or who has not given his or her consent to appear in the material.
    12. Interference. Except where expressly permitted by law, You may not translate, reverse-engineer, decompile, disassemble, or make derivative works from any of Our Materials or any other Materials from Our Site. You hereby agree not to use any automatic device or manual process to monitor or reproduce the Site or Materials, and agree that You will not use any device, software, computer code, or virus to interfere or attempt to disrupt or damage the Site or any communications on it or received through Our Services. If You do not adhere to this provision of this Agreement, You hereby stipulate to and agree to pay liquidated damages of $5000 plus any and all fees associated with recovery of these damages, including attorney’s fees and costs.
  6. PRODUCT AND SERVICE DESCRIPTIONS AND PRICING
    1. Video Streaming. Any person wishing to subscribe to FyreTV® adult streaming videos must do so via the FyreTV.com® website. The price for the subscription and the period of the subscription shall be stated on the applicable application page of the website. The Subscriber will be obligated to provide all information which FyreTV.com requests for a valid credit card before a subscription application may be approved.
      We reserve the right to change, add, remove, or otherwise alter the available Material in Our Service plans as well as the pricing of such plans at Our sole discretion. Any such change will take effect at the beginning of Your next billing cycle after Our notice to You of the change. Such notice may include direct communication to You via the e-mail address You provided Us during Your signing-up for the Service. Notice of such modifications may also include informing You of such modifications by updating this Agreement, which you have agreed to monitor for revisions. You agree that You will keep Us notified of any changes in Your contact information. We are not responsible for Your failure to receive any Site or Service change notification due to Your failure to inform Us of Your current contact information. Your continued use of the FyreTV service constitutes your acceptance of any such modifications.
    2. SMS Provisions You understand and agree that by using the Site or Services, You consent to receiving short message service mobile alerts (hereinafter “SMS Communications”) sent to Your wireless device from Wreal, LTD., and/or an associated third party. You acknowledge that the SMS Communications are being offered to You as a result of Your current customer relationship with Wreal, LTD. Such communications include, but are not necessarily limited to Membership account notifications, billing concerns and Site updates associated with Wreal, LTD. You agree that with the use of the SMS Communications, additional fees may be incurred based on the conditions of Your mobile carrier or program and Wreal, LTD. is not responsible for such fees.
      You may cancel Your participation in the SMS Program and any subsequent SMS Communications at any time. To opt-out You may select any of the following procedures: (1) by replying to any SMS Communication with the word “STOP;” (2) if there is an opt-out capability on the website.
    3. In addition to receiving specific Material via Your subscription plan, You may receive Minutes with Your subscription fee or otherwise purchase additional Minutes of viewing time (“Minutes”). You should refer to the Site for a description of the current number of Minutes included with Your subscription plan, if any, as well as the current cost of extra Minutes should You wish to purchase them. Minutes, whether received with Your subscription plan or purchased separately, have no cash value whatsoever.
    4. We reserve the right to change how Minutes may be redeemed, including when such Minutes must be redeemed, what Material the Minutes may be used to view, the cost of Minutes, and/or whether or not to continue offering Minutes for purchase or as a part of Your subscription plan. As with changes to the available Material and/or pricing, We will notify You prior to changes regarding the purchase or use of Minutes. Any such change will take effect at the beginning of Your next billing cycle after Our notice to You of the change. Such notice may include direct communication to You via the e-mail address You provided Us during Your signing-up for the Service. Notice of such modifications may also include informing You of such modifications by updating this Agreement, which you have agreed to monitor for revisions. Your use or redemption of Minutes will be governed by the restrictions concerning Minutes at the time You seek to redeem or use such Minutes.
    5. Minutes are completely non-refundable, and any unused Minutes You have remaining upon the termination or cancellation of the Service will not have any value, monetary or otherwise, to You. You understand and agree that any unused Minutes are forfeited upon such termination or cancellation of the Service; whether by Us or You.
    6. Upon approval, the Subscriber’s credit card account on file with FyreTV.com will be charged automatically for the cost of the first period of service. The Subscriber will receive from Wreal a set-up box, remote control, and instructions. The Subscriber agrees that Wreal may continue to charge the Subscriber’s credit card until and unless the Subscriber cancels the subscription per the procedure stated below.
    7. Wreal and third parties offering information, products, or services on the Sites and Services attempt to be as accurate as possible. However, Wreal does not warrant that information, product, and service descriptions or other content of the Sites is accurate, complete, reliable, current, or error-free. Despite Our efforts, it is possible due to computer or other errors or causes that a product or service offered on the Sites may be mispriced or may contain an inaccuracy in its description. In the event Wreal determines that a product or service is mispriced or contains an inaccurate description, Wreal reserves the right to take any action it deems reasonable and necessary, in its sole discretion, to rectify the error, including without limitation canceling Your order. (This limitation does not apply to residents of Puerto Rico.) You agree to notify Wreal immediately if You become aware of any pricing or descriptive errors or inconsistencies with any products or services You order through the Sites and comply with any corrective action taken by Wreal.
    8. Cancellation Policy. To cancel the Subscriber’s subscription, the Subscriber must contact Wreal Customer Service at support@fyretv.com.
      1. You must notify Wreal within 48 hours of discovering the defect via contact@fyretv.com ;
      2. You must send the set-up box and remote back to Wreal immediately after notifying Wreal of the defect;
      3. Wreal will check the set-up box and remote for defects. If Wreal determines the set-up box and/or remote is defective, Wreal will send the customer a new set-up box and remote at Wreal’s expense, and will issue the customer a refund of the period of time during which the customer could not access FyreTV.com due to the defect, as well as a refund for the cost of the shipping the set-up box and remote back to Wreal.
      4. If any of the above conditions are not met, Wreal will not refund any fees for the period prior to the end of that subscription period. Furthermore, "defect" shall mean a manufacturing defect, damage or other problem that existed in the set-up box and/or remote prior to the initial receipt of the box by the customer. Wreal will NOT issue any refunds for any damage or other problem arising at or after the initial receipt of the set-up box and remote by the customer, or for any defect that does not materially affect the customer’s ability to access FyreTV.com and review the materials of FyreTV.com.
      5. Refund/RMA Policy for Connection/Equipment Difficulties Resulting in Cancellation of Service. In addition to the above Cancellation Policy, Wreal will refund any subscription fees if the set-up box and/or remote are defective or if the customer has technical issues such that the customer cannot access FyreTV.com or review the contents of FyreTV.com. This policy is only for customers who have purchased a rental plan or purchased the FyreTV box through the Site and because of connection or technical issues have not been able to get the service to work.
        1. You will have 14 days from the shipping date of Your equipment to request a refund of the service. This refund will only be given after You have made at least two (2) attempts at troubleshooting via Our Customer Support options. You may e-mail support@fyretv.com, or live chat via www.fyretv.com to contact Customer Support.
        2. If You request a refund within the 14 day period commencing on the shipping date of Your order, You will have 14 days from the date of Your refund request to return the equipment and receive the refund.
        3. Refund amounts will be for the cost of the equipment plus any content purchased at the initial signup process. No refund of shipping costs will be given under any circumstances.
        4. There will be a 15% restocking fee (15% of the equipment or rental plan) on all equipment that has at least 1 attempt to enter a PIN.
      6. Notwithstanding any of these terms and conditions, this Agreement may be terminated by either party without notice at any time for any reason, provided that You may no longer access or use the Sites and Services after this Agreement has been terminated, and You remain responsible for subscription fees as set forth in the Cancellation Policy, above. Those provisions that would logically survive the termination of this Agreement shall so survive and continue to be enforceable.
    9. No refunds are available for existing customers who convert their equipment service from a rental plan to a retail plan (i.e. the customer has chosen to purchase the set and box rather than continue renting it). ALL SALES ARE FINAL FOR RENTAL-PURCHASE CONVERSIONS.
    10. NO REFUNDS WILL BE ISSUED AT ANY TIME PRIOR TO OUR RECEIVING BACK THE EQUIPMENT.
    11. In order to protect Wreal and its customers from fraudulent activity, We limit the products and services that may be ordered online by a single individual or entity. Wreal reserves the right to further limit quantities or to cancel or reject orders in its sole discretion.
  7. Stipulated Liquidated Damages:
    1. In various provisions in this Agreement, We have outlined liquidated damages amounts to be applied as penalties against You if You violate these specific provisions. You specifically agree to pay these amounts. In agreeing to pay liquidated damages, You acknowledge that this amount is not a penalty, that the actual damages are uncertain and difficult to ascertain, but that this amount represents the parties’ good faith attempt to calculate an appropriate compensation based on anticipated actual damages.
    2. For any breach of a portion of this Agreement that does not specifically state a liquidated damages amount, You hereby agree that any breach of this Agreement shall result in liquidated damages of $100 per occurrence. You specifically agree to pay this $100 in liquidated damages.
    3. If We are required to enlist the assistance of an Attorney or other person to collect any liquidated damages or any other amount of money from You, or if We are required to seek the assistance of an Attorney to pursue injunctive relief against You, then You additionally agree that You will reimburse Us for all fees incurred in order to collect these liquidated damages or in order to seek injunctive relief from You. You understand that even a nominal amount of damages may require the expenditure of extensive legal fees, travel expenses, costs, and other amounts that may dwarf the liquidated damages themselves. You agree that You will pay all of these fees and costs.
  8. DISCLAIMER OF WARRANTY:
    1. You expressly agree that use of the Site and Services, or any of the Materials contained therein is at Your own and sole risk. You also understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Site and Services or any of the Materials contained therein is done at Your own discretion and risk and that You will be solely responsible for any damage to Your computer system or loss of data that results from the download of such material and/or data.
    2. The Site and Services, and all Materials contained therein, are provided “as is” without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement.
    3. We make no representations or warranties that the Site and Services, or any Materials contained therein, will be uninterrupted, timely, secure, or error free; nor do We make any representations or warranties as to the quality, suitability, truth, usefulness, accuracy, or completeness of the Site and Services or any of the materials contained therein.
    4. You understand that We cannot and do not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses, or other code that may manifest contaminating or destructive properties. We do not assume any responsibility or risk for Your use of the Internet.
    5. We make no warranty regarding any goods or services purchased or obtained through the Site and/or Services or any transaction entered into through the Site and/or Services, and We are not responsible for any use of confidential or private information by sellers or third parties. We are not responsible for any typographical errors or omissions relating to pricing, text, or photography and video.
    6. The warranties and representations set forth in this Agreement are the only warranties and representations with respect to this Agreement, and are in lieu of any and all other warranties, written or oral, express or implied, that may arise either by agreement between the parties or by operation of law, including warranties of merchantability and fitness for a particular purpose. None of these warranties and representations will extend to any third person.
  9. DISCLAIMER AND INDEMNIFICATION:
    1. The provision of any services which is in violation of any laws is strictly prohibited. If We determine that You or any User has provided or intends to purchase or provide any services in violation of any law, Your ability to use the Site and Services will be terminated immediately without any reimbursement of any payment You may have made to Us. We do hereby disclaim any liability for damages that may arise from any User providing any services for any purpose that violates any law. You do hereby agree to defend, indemnify and hold Us harmless from any liability that may arise for Us should You violate any law.
    2. You also agree to defend and indemnify Us should any third party be harmed by Your illegal actions or should We be obligated to defend any claims including, without limitation, any criminal action brought by any party.
    3. Wreal reserves the right to change any and all content contained on the Sites and Services at any time without notice. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Wreal. YOUR RESPONSIBILITY AND RISK: It is solely Your responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, services, merchandise, and other information provided on or through the Sites or on the Internet generally.
    4. Our Site and Services contains material that may be offensive to third parties. You agree to indemnify and hold Us harmless from any liability that may arise from someone viewing such material and You agree to immediately cease review of the Site and use of the Services should You find them offensive.
    5. You agree to defend, indemnify, and hold harmless Wreal, its officers, directors, shareholders, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages directly, indirectly, and/or consequentially resulting or allegedly resulting from Your (or You under another person’s authority including without limitation to governmental agencies), use, misuse, or inability to use the Site, Services, or any of the Materials contained therein, or Your breach of any of this Agreement. We shall promptly notify You by electronic mail of any such claim or suit, and cooperate fully (at Your expense) in the defense of such claim or suit. We reserve the right to participate in the defense of such claim or defense at Our own expense, and choose Our own legal counsel, but are not obligated to do so.
    6. You agree to indemnify, defend, and hold harmless Wreal, its officers, directors, employees, agents, licensors, suppliers, and any third-party information providers to the Sites from and against all losses, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement by You, by persons to whom You have given Your user name or password, to persons whom You have allowed to view the Materials on the Sites or Services via the FyreTV box, or Your violation of any rights of a third party.
    7. You hereby discharge, acquit, and otherwise release Wreal, its parent company, its agents, employees, officers, directors, shareholders, attorneys, and affiliates, from any and all allegations, counts, charges, debts, causes of action, and claims relating in any way to the use of, or activities relating to the use of, the Site and Services including, but not limited to claims relating to the following:
      1. Sexual Harassment, Negligence, Gross Negligence, Reckless Conduct, Alienation of Affections (to the extent recognized in any jurisdiction), Intentional Infliction of Emotional Distress, Intentional Interference with Contract or Advantageous Business Relationship, Defamation, Privacy, Publicity, Intellectual Property, Statutory Rape, Misrepresentation, any financial loss not due to the fault of the Site, missed meetings, unmet expectations, false identities, fraudulent acts by others, invasion of privacy, release of personal information, failed transactions, purchases or functionality of the Site, unavailability of the Site, its functions and/or services and any other technical failure that may result in inaccessibility to the Site, or any claim based on Vicarious Liability for Torts committed by individuals met on or through the Site and Services, including but not limited to fraud, theft or misuse of personal information, assault, battery, stalking, rape, theft, cheating, perjury, manslaughter, or murder.
      2. The above list is intended to be illustrative only, and not exhaustive of the types or categories of claims released by You. This release is intended by the parties to be interpreted broadly in favor of Us, and thus any ambiguity shall be interpreted in a manner providing release of the broadest claims. This release is intended to be a full release of claims, and the parties acknowledge the legally binding nature of this provision, and the nature of the rights given up in connection therewith.
  10. LIMITATION OF LIABILITY:
    1. In no event shall We (or our licensors, agents, suppliers, resellers, service providers, or any other subscribers or suppliers) be liable to You, or any other third party for any direct, special, indirect, incidental, consequential, exemplary, or punitive damages, including without limitation, damages for loss of profits, loss of information, business interruption, revenue, or goodwill, which may arise from any person’s use, misuse, or inability to use the Site, Services, or any of the Materials contained therein, even if We have been advised of the probability of such damages. This is for any matter arising out of or relating to this Agreement, whether such liability is asserted on the basis of contract, tort or otherwise, even if We have been advised of the possibility of such damages.
    2. In no event shall Our maximum total aggregate liability hereunder for direct damages exceed the total fees actually paid by You for use of the Site or Services for a period of no more than one (1) month from the accrual of the applicable cause or causes of action or $10.00, whichever is greater. Because some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to You. If these laws apply, some or all of the above disclaimers, exclusions, or limitations, may not apply to You, and You may have additional rights to those contained herein. In such states, Wreal’s liability is limited to the greatest extent permitted by law.
  11. LINKS AND LINKING:
    1. Parties other than Wreal offer and provide products and services on or through the Sites and/or the Services. Except for Wreal-branded information, products, or services that are specifically identified as being supplied by Wreal, Wreal does not operate, control, or endorse any information, products, or services on the Sites or Services accessible through the Sites in any way. Except for Wreal identified information and Wreal-branded products or services, all information, products, and services offered through the linked sites or Internet generally are offered by third parties that are not affiliated with Wreal. Wreal is not responsible for examining or evaluating the content of such sites or services, and Wreal does not warrant the offerings of, any of these businesses or individuals or the content of their Web sites. Wreal does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties.
    2. 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 use of or reliance on any such third-party content, goods or services available on or through any such website or resource. If You decide to access any such third party website, You do so entirely at Your own risk and subject to any terms and conditions and privacy policies posted therein.
    3. You further acknowledge that use of any website controlled, owned or operated by third parties is governed by the terms and conditions of use for those websites, and not by this Agreement, Our Spam Policy, or Our Privacy Policy, which are incorporated into this Agreement by reference.
    4. Links to external websites (including external websites that are framed by the Site) or inclusions of advertisements do not constitute an endorsement by Us of such websites or the content, products, advertising, or other materials presented on such Site, but are for Your convenience.
    5. You hereby agree to hold Us harmless from any and all damages and liability that may result from the use of links that may appear on the Site or via the Services. We reserve the right to terminate any link or linking program at anytime.
    6. Links to the Sites. You are granted a limited, nonexclusive right to create a hypertext link to the homepage of the Sites, provided such link does not portray Wreal or any of its products and services in a false, misleading, derogatory, or otherwise defamatory manner. You may not use a Wreal or other proprietary graphic or trademark of Wreal to link to the Sites without the express written permission of Wreal. This limited right may be revoked at any time.
    7. Third-Party Links. Wreal makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of third-party Web sites or services accessible by hyperlink from the Sites, or third-party Web sites linking to the Sites. Such linked Web sites are not under the control of Wreal and Wreal is not responsible for the content of any such linked Web site or any link contained in a linked Web site, or any review, changes, or updates to such Web sites. Wreal is providing these links to You only as a convenience, and the inclusion of any link does not imply affiliation, endorsement, or adoption by Wreal of the third-party Web site or any information contained therein. When leaving the Wreal Sites, You should be aware that Wreal’s terms and policies no longer govern, and, therefore, You should review the applicable terms and policies, including privacy and data gathering practices, of that Web site.
    8. Third-Party Financial Information. Wreal may provide links to third-party Web sites or services that contain financial or investment information about Wreal. Access to such third-party Web sites and the information contained therein is provided as a service to those interested in the information. Wreal neither regularly monitors nor has control over the content of third parties’ statements or Web sites. Accordingly, Wreal does not endorse or adopt these Web sites or any information contained therein, including, without limitation, analysts. reports and stock quotes. Wreal makes no representations or warranties whatsoever regarding the accuracy or completeness of the content, information, or opinions of third-party Web sites or other third-party information that is identified on the Sites. Users visit these Web sites and use the information contained therein at their own risk.
  12. TRADEMARK INFORMATION:
    1. FYRETV®, fyretv.com®, and Wreal are service marks and/or trademarks of the Site and Services. FYRETV®, the FyreTV logo, and FYRETV.COM® are registered trademarks with the United States Patent and Trademark Office. We aggressively defend Our intellectual property rights.
    2. Other manufacturers’ product and service names referenced herein may be trademarks and service marks of their respective companies and are the exclusive property of such respective owners, and may not be used publicly without the express written consent of the owners and/or holders of such trademarks and service marks.
    3. All of the marks, logos, domains, and trademarks that You find on the Site and Services may not be used publicly except with express written permission from Us, and may not be used in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits Us.
  13. COPYRIGHT INFORMATION:
    1. All copyrighted and copyrightable materials on the Sites and Services, including, without limitation, the design, text, graphics, pictures, sound files and other files, and the selection, arrangement, look and feel of the Sites are owned exclusively by Wreal, a Wreal, affiliated Company, and/or Wreal licensors. You are granted a limited, non-exclusive, non-sub licensable right to access the Sites for the purposes of display in Your private residence, the Materials for Your personal, non-commercial, and informational use only, and only for persons who are permitted by applicable law to view the Materials. The foregoing license grant does NOT include the right for You to:
      1. Publish, publicly perform or display, or distribute to any third party any Materials, including reproduction on any computer network or broadcast or publications media;
      2. Market, sell, or make commercial use of the Sites or any Materials, in the absence of a separate, written agreement authorizing such use;
      3. Systematically collect and use any data or content, including the use of any data mining, robots, or similar data gathering and extraction methods;
      4. Make derivative uses of the Sites or the Materials;
      5. Use, frame, or utilize framing techniques to enclose any portion of the Sites (including the images found at the Sites, any text, or the layout/design of any page or form contained on a page); or
      6. Use the Material in any way which would violate any applicable laws, regulations or rights of third parties, or violate this Agreement or the policies set forth on the Sites.
    2. Except for the limited license granted to You, You are not conveyed any other right or license by implication, estoppel, ‘moral rights’ or otherwise in or under any patent, trademark, copyright, or proprietary right of Wreal or any third party. Any unauthorized use of the Sites or Services will terminate the permission or license granted by this Agreement and may violate applicable law including copyright laws, trademark laws (including trade dress), and communications regulations and statutes.
  14. NOTICE OF CLAIMED INFRINGEMENT:
    1. We respect the intellectual property of others. If You believe that Your work has been copied in a way that constitutes copyright infringement, please provide Our Designated Copyright Agent with the following information:
      1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest.
      2. A description of the copyrighted work or other intellectual property that You claim has been infringed.
      3. A description of where the material that You claim is infringing is located on the Site or Services.
      4. Your address, telephone number, and email address.
      5. A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and.
      6. A statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
    You may send Your Notice of Claimed Infringement to:

    Lawrence G. Walters, Esquire
    781 Douglas Ave.
    Altamonte Springs, FL 32714
    Fax: (407) 774-6151
    E-mail: notice [at] DMCANotice [dot] com

    NOTE: Please do not send other inquires or information to our Designated Agent.
  15. Notice and Take Down Procedures
    1. The Site implements the following “notice and takedown” procedure upon receipt of any notification of claimed copyright infringement:
      1. The Site reserves the right at any time to disable access to, or remove any material or activity accessible on or from any Site or any Materials claimed to be infringing or based on facts or circumstances from which infringing activity is apparent.
      2. It is the firm policy of the Site to terminate the account of repeat copyright infringers, when appropriate, and the Site will act expeditiously to remove access to all material that infringes on another’s copyright, according to the procedure set forth in 17 U.S.C. §512 of the Digital Millennium Copyright Act (“DMCA”). The Site’s DMCA Notice Procedures are set forth in the preceding paragraph. If the notice does not comply with §512 of the DMCA, but does comply with three requirements for identifying sites that are infringing according to §512 of the DMCA, the Site shall attempt to contact or take other reasonable steps to contact the complaining party to help that party comply with the notice requirements.
      3. When the Designated Agent receives a valid notice, the Site will expeditiously remove and/or disable access to the infringing material and shall notify the affected user. Then, the affected user may submit a counter-notification to the Designated Agent containing a statement made under penalty of perjury that the user has a good faith belief that the material was removed because of misidentification of the material. After the Designated Agent receives the counter-notification, it will replace the material at issue within 10-14 days after receipt of the counter-notification unless the Designated Agent receives notice that a court action has been filed by the complaining party seeking an injunction against the infringing activity. The Site reserves the right to modify, alter or add to this policy, and all users should regularly check back to this Agreement to stay current on any such changes.
  16. DMCA Counter-Notification Procedure
    1. If the Recipient of a Notice of Claimed Infringement ("Notice") feels that the Notice is erroneous or false, and/or that allegedly infringing material has been wrongly removed in response to a Notice as outlined in Section 5.12 above, the Recipient is permitted to submit a counter-notification pursuant to Section 512(g)(2) and (3) of the DMCA. A counter-notification is the proper method for the Recipient to dispute the removal or disabling of material pursuant to a Notice. The information that a Recipient provides in a counter-notification must be accurate and truthful, and the Recipient will be liable for any misrepresentations which may cause any claims to be brought against Us relating to the Content.
    2. To submit a counter-notification, please provide Our Designated Copyright agent the following information:
      1. A specific description of the material that was removed or disabled pursuant to the Notice.
      2. A description of where the material was located within the Site or the Content before such material was removed and/or disabled. Please provide the specific url if possible.
      3. A statement reflecting the Recipient’s belief that the removal or disabling of the material was done so erroneously. For convenience, the following format may be used:
        “I swear, under penalty of perjury, that I have a good faith belief that the referenced material was removed or disabled by the service provider as a result of mistake or misidentification of the material to be removed or disabled.”
      4. The Recipient’s physical address, telephone number, and email address.

        Written notification containing the above information must be signed and sent to:

        Lawrence G. Walters, Esquire
        781 Douglas Ave.
        Altamonte Springs, FL 32714
        Fax: (407) 774-6151
    3. Alternately, to email the above information, You must digitally sign the email and send it to: notice [at] DMCANotice [dot] com. Do not send any other information or material to the DMCA Agent.
    4. After receiving a DMCA-compliant counter-notification, Our Designated Copyright Agent will forward it to Us, and We will then provide the counter-notification to the entity who first provided the Notice concerning material in the Recipient’s Content.
    5. Additionally, within ten to fourteen (10-14) days of Our receipt of the counter-notification, We will replace or cease disabling access to the disputed material provided that We or Our Designated Copyright Agent have not received notice from the entity who first provided the Notice that such entity has filed a legal action pertaining to the disputed material.
    6. The Site reserves the right to modify, alter or add to this policy, and all Users should regularly check back regularly to stay current on any such changes.
  17. EXPORT CONTROL:
    1. You understand and acknowledge that the software elements of the Materials on the Site may be subject to regulation by agencies of the United States Government, including the United States Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. Diversion of such Materials contrary to United States’ or international law is prohibited.
    2. You will not assist or participate in any such diversion or other violation of applicable laws and regulations.
    3. You warrant that you will not license or otherwise permit anyone not approved to receive controlled commodities under applicable laws and regulations and that You will abide by such laws and regulations.
    4. You agree that none of the Materials are being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals or be used for proscribed activities.
  18. NO AGENCY RELATIONSHIP:
    1. Nothing in this Agreement shall be deemed to constitute, create, imply, give effect to, or otherwise recognize a partnership, employment, joint venture, or formal business entity of any kind; and the rights and obligations of the parties shall be limited to those expressly set forth herein.
  19. PRESS RELEASES
    1. The information contained within press releases issued by Wreal should not be deemed accurate or current except as of the date the release was posted. Wreal has no intention of updating, and specifically disclaims any duty to update, the information in the press releases. To the extent any information therein is forward-looking, it is intended to fit within the safe harbor for forward-looking statements and is subject to material risk.
  20. NOTICE:
    1. Notice. Any notice required to be given under this Agreement may be provided by email to a functioning email address of the party to be noticed, by a general posting on the Site, or personal delivery by commercial carrier such as Federal Express or DHL. Notices by customers to Us shall be given by electronic messages unless otherwise specified in the Agreement.
    2. Change of Address. Either party may change the address to which notice is to be sent by written notice to the other party pursuant to this provision of the Agreement.
    3. When Notice is Effective. Notices shall be deemed effective upon delivery. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient’s business hours, or 9:00 a.m. (recipient’s time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number and/or recipient for any notice or courtesy copy, hereunder.
    4. Refused, Unclaimed, or Undeliverable Notice. Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
  21. ENFORCEMENT. Wreal reserves the right but does not assume the obligation to strictly enforce this Agreement, including without limitation by issuing warnings, suspension, or termination of service, and/or removal, screening, or editing of posted message, data, information, text or other material, self help and active investigation, litigation and prosecution in any court or appropriate venue. We may access, use, and disclose transaction information and content to comply with the law (e.g., a lawful subpoena); enforce or apply Our customer agreements; to initiate, render, bill, and collect for services; to protect Our rights or property, or to protect users of those services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services. INDIRECT OR ATTEMPTED VIOLATIONS OF THIS AGREEMENT OR ANY RELATED POLICY, AND ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD PARTY ON BEHALF OF A WREAL CUSTOMER, SHALL BE CONSIDERED VIOLATIONS OF THIS AGREEMENT BY SUCH CUSTOMER.
  22. COMMUNICATIONS NOT PRIVATE:
    1. We do not provide any facility for sending or receiving private or confidential electronic communications. All messages transmitted to Us shall be deemed to be readily accessible to the general public. Visitors should not use this Site or Services to transmit any communication for which the sender intends only the sender and the intended recipient(s) to read. Notice is hereby given that all messages entered into this Site or Services can and may be read by the agents and operators of this service, regardless of whether they are the intended recipients of such messages.
  23. FORCE MAJEURE:
    1. We shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond our reasonable control, including but not limited to: acts of God, such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay the Site’s or Services’ performance.
  24. Jurisdiction/Disputes:
    1. Governing Law. This Agreement and all matters arising out of, or otherwise relating to, this Agreement shall be governed by the laws of the state of Florida, excluding its conflict of law provisions. The sum of this paragraph is that any and all litigation or arbitration permitted under this Agreement must be, without exception, initiated in Miami-Dade County, Florida.
      1. All parties to this Agreement agree that all actions or proceedings arising in connection with this Agreement or any services or business interactions between the parties that may be subject to this Agreement shall be litigated or arbitrated exclusively in the state and federal courts located in Miami-Dade County, Florida.
      2. The parties agree to exclusive jurisdiction in, and only in, Miami-Dade County, Florida.
      3. The parties agree to exclusive venue in, and only in, Miami-Dade County, Florida, Florida.
      4. The parties additionally agree that this choice of venue and forum is mandatory and not permissive in nature, thereby precluding any possibility of litigation between the parties with respect to, or arising out of, this Agreement in a jurisdiction other than that specified in this paragraph.
      5. All parties hereby waive any right to assert the doctrine of forum non-conveniens or similar doctrines, or to object to venue with respect to any proceeding brought in accordance with this paragraph or with respect to any dispute under this Agreement whatsoever.
      6. All parties stipulate that the state and federal courts located in Miami-Dade County, Florida shall have personal jurisdiction over them for the purpose of litigating any dispute, controversy, or proceeding, permitted to be litigated and arising out of (or related to) this Agreement and/or the relationship between the parties contemplated thereby.
      7. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it, as contemplated by this paragraph by registered or certified mail, Federal Express, proof of delivery or return receipt requested, to the parties address for the giving of notices as set forth in this Agreement.
      8. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law if such enforcement becomes necessary.
      9. Right to Injunctive Relief. Both parties acknowledge that remedies at law may be inadequate to provide an aggrieved party with full compensation in the event of the other party’s breach, and that an aggrieved party shall therefore be entitled to seek injunctive relief in the event of any such breach, in addition to seeking all other remedies available at law or in equity.
  25. Arbitration PROVISIONS:
    1. If there is a dispute between the parties arising out of or otherwise relating to this Agreement, the parties shall meet and negotiate in good faith to attempt to resolve the dispute. If the parties are unable to resolve the dispute through direct negotiations, then, except as otherwise provided herein, either party must submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. Arbitral Claims shall include, but are not limited to, contract and tort claims of all kinds, and all claims based on any federal, state or local law, statute, or regulation, excepting only claims by Us under applicable worker’s compensation law, unemployment insurance claims, intellectual property claims, actions for injunctions, attachment, garnishment, and other injunctive or equitable relief. The arbitration shall be conducted in Miami-Dade County, Florida, by a single arbitrator, knowledgeable in Internet and e-Commerce disputes. The arbitrator shall be willing to sign an oath of neutrality.
    2. The Arbitrator shall have no authority to award any punitive or exemplary damages; certify a class action; add any parties; vary or ignore the provisions of this User Agreement; and shall be bound by governing and applicable law. The arbitrator shall render a written opinion setting forth all material facts and the basis of his or her decision within thirty (30) days of the conclusion of the arbitration proceeding. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRAL CLAIMS.
    3. No waiver of right to arbitration - There shall be no waiver of the right to arbitration unless such waiver is provided affirmatively and in writing by the waiving party to the other party. There shall be no implied waiver of this right to arbitration. No acts, including the filing of litigation, shall be construed as a waiver or a repudiation of the right to arbitrate.
    4. The First Amendment applies to arbitration proceedings - Any arbitration tribunal shall consider the First Amendment to the United States Constitution to be in force and effect between the parties. Both parties stipulate to the applicability of the First Amendment’s protection of free speech, expression, and association, and both parties stipulate that case law interpreting the First Amendment shall be admissible and considered to be binding authority upon the Arbitrator.
  26. Miscellaneous Provisions:
    1. Attorney’s Fees. In the event any Party shall commence any claims, actions, formal legal action, or arbitration to interpret and/or enforce any of the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorney’s fees and costs incurred in connection therewith, including attorney’s fees incurred on appeal.
    2. Assignment. The rights and liabilities of the parties hereto will bind and inure to the benefit of their respective assignees, successors, executors, and administrators, as the case may be.
    3. Severability. If for any reason a court of competent jurisdiction or an arbitrator finds any provision of this Agreement, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of this Agreement will continue in full force and effect.
    4. Complaints – California Residents: The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted at: Consumer Complaints.
    5. No Waiver. No waiver or action made by Us shall be deemed a waiver of any subsequent default of the same provision of this Agreement. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
    6. Headings. All headings are solely for the convenience of reference and shall not affect the meaning, construction or effect of this Agreement.
    7. Complete Agreement. This Agreement constitutes the entire agreement between the parties with respect to Your access and use of the Site, Services and the Materials contained therein, and Your use of the Site and Services, and supersede and replace all prior understandings or agreements, written or oral, regarding such subject matter.
    8. Other Jurisdictions. We make no representation that the Site, Services or any of the Materials contained therein are appropriate or available for use in other locations, and access to them from territories where their content may be illegal or is otherwise prohibited. Those who choose to access the Site and Services from such locations do on their own initiative and are solely responsible for determining compliance with all applicable local laws.

This document prepared by: Walters Law Group, www.FirstAmendment.com. All Rights Reserved. © (2010).