Interestingly, the sites with explicit content contain many of the same provisions and rarely have more than a browse wrap style agreement on the page. The agreement says that any use of the site constitutes assent to be bound by the terms, but that may not hold up. The sharing agreement for Xhamster are similar to the other explicit sites as well in that cookies are freely shared with advertisers. Another common theme from the adult site genre is strict provisions limiting liability and disclaiming any warranties from content and links on the site.
Representations & Warranties
"8.1 YOU AGREE THAT YOUR USE OF THE SITE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE SITE, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND YOUR USE THEREOF. THE SITE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE'S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY:
8.1.1 ERRORS, MISTAKES, OR INACCURACIES OF CONTENT;
8.1.2 PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SITE;
8.1.3 UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN;
8.1.4 INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SITE, ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY;
8.1.5 ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE.
8.1.6 THE SITE RESERVES THE RIGHT TO DELETE ANY CONTENT OR LINK WITHOUT ANY NOTICE OR WARNING TO THE USER WHO UPLOADED IT.
8.1.7 THE SITE DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY-PROVIDED PRODUCT OR SERVICE ADVERTISED ON, OFFERED BY, OR FEATURED ON THE SITE OR THROUGH THE SITE OR ANY LINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND THE SITE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE."
Limitations on Liability
"9.1 IN NO EVENT SHALL THE SITE, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY:
9.1.1 ERRORS, MISTAKES, OR INACCURACIES OF CONTENT;
9.1.2 PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SITE;
9.1.3 UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN;
9.1.4 INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SITE;
9.1.5 BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SITE BY ANY THIRD PARTY;
9.1.6 ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 IN THE EVENT THAT YOU DO NOT SUPPLY THE SITE WITH YOUR E-MAIL ADDRESS, YOU SPECIFICALLY ACKNOWLEDGE AND WAIVE ANY CLAIM BASED ON THE SITE’S GOOD FAITH DISABLING OF ACCESS TO, OR REMOVAL OF, MATERIAL OR ACTIVITY WHICH HAS BEEN CLAIMED TO BE INFRINGING, OR BASED ON FACTS OR CIRCUMSTANCES FROM WHICH INFRINGING ACTIVITY APPEARS LIKELY, REGARDLESS OF WHETHER THE MATERIAL OR ACTIVITY IS ULTIMATELY DETERMINED TO BE INFRINGING.
9.3 THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THE SITE MAKES NO REPRESENTATIONS THAT THE SITE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SITE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
9.4 YOU SPECIFICALLY ACKNOWLEDGE THAT THE SITE SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
9.5 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 TEN DOLLARS ($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."
"10.1 To the extent permitted by applicable law, You agree to defend, indemnify and hold harmless the Site, its parent, subsidiary and affiliated corporation(s), their officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt, and expenses (including but not limited to attorney's fees) arising from: (i) Your use of and access to the Site; (ii) Your violation of any part of these Terms and Conditions; (iii) Your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that Your content caused damage to a third party. This defense and indemnification obligation will survive these Terms and Conditions and Your use of the Site.
10.2 The provision of any services which are in violation of any laws is strictly prohibited. If We determine that You or any User has provided or intends to provide any services or material 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 have every right to voluntarily cooperate with law enforcement or private aggrieved parties that We may be legally compelled to do so. We do hereby disclaim any liability for damages that may arise from any User providing any material or services for any purpose that violates any law. You do hereby agree to defend, indemnify and hold Us harmless from any liability that may be imposed on Us arising from Your violation of any law – whether online or offline.
10.3 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.
10.4 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.
10.5 You agree to defend, indemnify, and hold harmless Company, 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."
Members - Members are those Users who interact with Our services in a way which requires registration, such as by uploading content to the Site. Members will be prompted to provide a valid e-mail address in the process of registering a username.
Browsers - Browsers are visitors to the Site who never enter into any active data collection pages. Browsers may, however, view content uploaded by Members. Any information gathered from Browsers is also gathered from Members. This information is restricted to cookies, IP Addresses and Referral URLs, and other passive information gathering devices (explained below).
1.1.1 Hammy Media, Ltd. is the operator of www.xhamster.com. Hereinafter, Hammy Media, Ltd. shall be referred to as “Company.” When first-person pronouns are used in this Agreement, (Us, We, Our, Ours, etc.) these provisions are referring to Company and/or to any other site that we may choose to operate in the future. Additionally, when the terms “the Site” or “Site” are used, these terms refer to www.xhamster.com, any predecessor or successor domain or URL, along with any website published by Us, unless a site is specifically exempt from this Agreement. Our Site(s), and the services the Site provides (“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 content owned, operated, licensed, or controlled by the Company (collectively, “Materials”).
1.1.3 User vs. Member - For the purposes of this Agreement, all Members are Users, but not all Users are Members. This Agreement applies to all Users whether they are Members or not. You become a User by accessing this Site or the Services in any way, therefore You need not become a Member of the Site to make this Agreement apply to You. You are not considered a Member as defined by this Agreement until such time as You have submitted Your online account Registration (hereinafter “Registration”). You become a Member by registering with the Site for a User ID and password as required by the Registration, as discussed below, or enabling and participating in one of Our live communication features on the Site as a guest.
"The primary use for Your information is to provide You with services You have requested and/or paid for. We also use Your information to deliver customized services to You. Member login information and e-mail addresses may be disclosed to third parties for the purpose of providing certain features or third-party upgrades as requested by the Member. We are not responsible for how third parties use your information, and You should become familiar with such third parties’ privacy policies prior to requesting their services. Non-personal and aggregate information, such as that collected passively is used in order to customize Our marketing efforts or to customize the use of Our Site for an aggregate group of customers. We additionally may use the personal information of Users whose membership has expired or has been cancelled in order to market Our services to these individuals in the future.
We generally will use Your information for the purposes for which You specifically provide it, for example, to ensure payment for subscription services, if applicable. We also use Your information for market research purposes – in order to increase Your (and other Users’) experience according to tracked interests, to analyze and target potential new markets, and for other marketing purposes.
We also use Your information for the obvious purpose of providing Your User profile to all of Our other Members and Browsers. When You create a profile, You should consider all of the information on the profile to be public information, accessible by anyone, unless otherwise stated. Even if You choose to not make public Your personally identifying information, You should understand that there is a possibility that You may be identified through information You provide on Your profile. For example, You may be visually recognized by someone who sees Your picture or Your description may be adequately detailed that someone browsing the Site would be able to tell that the person is You. Accordingly, You understand that using this Site places You in control of all of the information displayed on Your profile, and You are fully responsible for any consequences arising out of such information You choose to publish.
It is Our policy not to use or share the personal information about Browsers or Members in ways unrelated to those described in this Policy without also providing You an opportunity to opt out or otherwise prohibit such unrelated uses. However, We may disclose personal information about Browsers or Members, or information regarding Your use of the services or Site(s) accessible through Our services, for any reason if, in Our sole discretion, We believe that it is reasonable to do so, including:
To satisfy any laws, such as the Electronic Communications Privacy Act, regulations, or governmental, or legal requests for such information;
To disclose information that is necessary to identify, contact, or bring legal action against someone who may be violating our Terms & Conditions or other User policies;
To operate Our services properly;
To protect ourselves, Our Members, and the general public. We specifically reserve the right to disclose any and all information to law enforcement in the event that a crime is committed, is suspected, or if We are compelled to do so by lawful criminal, civil, or administrative process, discovery requests, subpoenas, court orders, writs, or reasonable request of authorities or persons with the reasonable power to obtain such process.
If We have reason to believe that the User is not the owner of a credit card, even if the credit card use is authorized, We will provide information about You to the credit card holder. We will absolutely provide Your information to the credit card holder if We believe that fraud is a possibility. However, We do not require that there be fraud, as it is Our policy that the credit card holder always has an absolute right to access any and all of Your personal information.
Anyone who violates Our Anti-Spam Policy, if applicable, shall have their personal information made public. If there is any investigation on any unlawful spamming, or any use of bulk e-mail in order to promote Your User profile, or any use of bulk e-mail in any manner that leads back to Our Site, or any one of Our Sites, We will cooperate with any and all parties completely and freely in order to see that Your bulk e-mail activities stop."