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THE FOLLOWING DESCRIBES THE TERMS ON WHICH POSERFISH.COM OFFERS YOU ACCESS TO ITS SERVICES. Introduction Welcome to the user agreement ("Agreement" or "User Agreement") for the poserFish.com website (including all sub-domains, the "Site"). The party with which you are contracting is poserFish.com S.A., a Costa Rican company (the "Company"). This Agreement describes the terms and conditions applicable to your use of the Site. If you do not agree to be bound by the terms and conditions of this Agreement, do not use or access our services. If you have any questions, please refer to our Frequently Asked Questions. You must read, agree with, and accept all of the terms and conditions contained in this User Agreement and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may use the Site. By accepting this Agreement, you also agree that your use of other websites of the Company will be governed by the user agreement and privacy policy posted on those websites. BY LOGGING IN TO THE SITE, YOU REPRESENT AND WARRANT THAT YOU FULLY UNDERSTAND, ACCEPT, AND AGREE TO COMPLY WITH THIS USER AGREEMENT. We may amend this Agreement at any time by posting the amended terms on the Site. Except as stated below, all amended terms will automatically be effective 30 days after they are initially posted on the Site. This Agreement may not be otherwise amended except in a writing signed by you and the Company. This Agreement is effective upon acceptance in registration for new registering users, and is otherwise effective on January 1, 2005 for all users. The Company makes no representations or warranties, implicit or explicit, as to your legal right to participate in the Site nor will any of the Company's employees, licensees, distributors, wholesalers, affiliates, subsidiaries, advertising, promotional or other agencies, media partners, agents, or retailers have the authority to make any such representations or warranties. You will comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding each of your use of the Site, the Company's services, and your participation in Bets (as hereinafter defined). The Site is for entertainment value only. No purchase is necessary or required to visit the Site. Any participation in the Site is at your sole option, discretion, and risk. By visiting the Site, you acknowledge that you do not find the Site or the Company to be offensive, objectionable, unfair, or indecent. In establishing the Site and allowing you to access it, the Company is rendering services to you and all other users of the Site as an independent contractor. In no event will this Agreement or your use of the Site, through registering as a member of the Site, entering into Bets through the Site, or in any other manner whatsoever, create between the Company and you a principal-agent relationship, a partnership, a joint venture, an employer-employee relationship, a franchiser-franchisee relationship, or a master-servant relationship. The Company reserves the right to e-mail you with any announcements pertaining to your participation in the Site or any activities conducted through the Site, and any such e-mail will not be marked as spam or otherwise filtered to prevent you from receiving and viewing the e-mail. The Site Is a Bulletin Board System The Site is not a bookie, a gambling house, or a sportsbook. The Site acts as a Bulletin Board System to allow members to engage in bets about most any topic where the members themselves establish their own terms, including bet amount, odds, and closing time (individually, a "Bet"). Neither the Company nor the Site will be involved in the actual decision of the Bet outcome between the person proposing a Bet (the "Bet Maker" and the person taking that Bet (the "Bet Taker"; Bet Makers and Bet Takers may be referred to herein individually as a "Bet Participant"). As a result, neither the Company nor the Site have any control over the content, quality, truth, or accuracy of any Bet listings or outcomes. Neither the Company nor the Site can or will ensure that a Bet Participant actually will input an accurate outcome. Neither the Company nor the Site will arbitrate or otherwise adjudicate any disputes between Bet Participants. Because the Site is only a Bulletin Board System, if you have a dispute with one or more Bet Participants or other Site users, you release the Company (and the Company's employees, officers, directors, licensees, distributors, wholesalers, affiliates, subsidiaries, advertising, promotion or other agencies, media partners, agents, advisors, and retailers) from claims, demands, and damages (actual and consequential) of every kind and nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way connected with such disputes. As a Bet Participant, you are obligated to submit the outcome of your Bet to the Site for processing, even if you are the loser of the Bet. If the Bet Participants do not agree on the final outcome of a Bet or the winner of a Bet (an "Argued Bet"), there are two ways in which the final outcome or the winner of a Bet will be determined. The method that will be used for a specific Bet will be specified by the Bet Maker when the terms of the Bet initially are established, and cannot be changed once the Bet is placed. The methods for resolving an Argued Bet are as follows: (1) Jury Method. The Site community as a whole will be invited to review the dispute with respect to the Argued Bet and determine the winner by majority vote, with each member having only one vote. Use of this method will result in a slight reduction in each Bet Participant's rating under the Karma System (as hereinafter defined). This method is not available for private Bets. (2) Disputed Method. The Bet Participants each are returned their original wager. Use of this method will result in a considerable reduction in each Bet Participant's rating under the Karma System. Once a final outcome of the Argued Bet is determined using either the Jury Method or the Disputed Method, the outcome is final and binding, and cannot and will not be disputed further or changed for any reason. Membership Eligibility If you do not qualify to use the Site, you must refrain from doing so. Use of the Site is restricted to individuals of legal age of majority as determined in the jurisdiction in which the individual resides and who can form legally binding contracts under the laws of that jurisdiction . Notwithstanding the foregoing, you cannot play under any circumstances if you are not at least 18 years of age. Participation in Bets is open only to residents of those jurisdictions where such participation is legal and not prohibited. Participation in Bets is void wherever prohibited by law. If you register for use of the Site as a business entity, you represent that you have the authority to bind the entity to this Agreement. None of your Member Account (as hereinafter defined), registered user name, or password may be transferred or sold to another person. You are solely responsible for keeping your registered username and password secure and secret. You will not allow any other person, including, without limitation, any minor, to use or reuse your registered username, password, or Member Account, access or use any materials or information from the Site, accept or submit any payment from or to the Site or your Member Account, or participate in any Bet. You are solely responsible for any purchases or losses that may occur on your Member Account. The Company will not be required to maintain usernames or passwords, or to provide you with your username or password if you misplace, forget, lose, or otherwise are unable to access the Site or the activities conducted through the Site for any reason, other than the Company's error. The Company will not be liable for computer malfunctions or for any attempts by you to participate in activities conducted through the Site by methods, means, or ways not intended by the Company. No person whose use of the Site or whose Member Account has been temporarily or indefinitely suspended by the Company may use the Site during the period of such suspension. If you are found to be cheating or attempting to defraud any Bet Participant, or if you make untrue or malicious comments with regard to the Company's operations, in addition to suspending your use of the Site and your Member Account, the Company reserves the right to publicize your actions together with your identity and e-mail address, as well as to circulate that information to other website operators, casinos, banks, credit card companies, and appropriate agencies. Fees and Services The Company, in its sole and absolute discretion, may change some or all of the services it renders, through the Site or otherwise, at any time. Registering to use the Site is free. The Company will charge fees (the "Fees") for services it renders through the Site. A listing of the Fees is available, and the Fees are incorporated into this Agreement by reference; provided, however, that the Company may change the Fees at any time. Changes to the Fees generally will be effective only 14 days after such changes are posted to the Site. However, the Company reserves the right to temporarily change the Fees in connection with promotional events, and such temporary changes to the Fees are effective when the temporary promotional event is posted on the Site. If the Company introduces a new service or product on the Site or otherwise, the Fees for that new service or product will be effective with the launch of the service or product. Unless otherwise stated, all of the Fees are quoted in U.S. Dollars. You are responsible for paying all of the Fees associated with using the Site and services and products otherwise provided by the Company, together with any and all applicable taxes. Member Account On your becoming a member of the Site, you will be assigned an account ("Member Account"). The Company reserves the right to cancel your Member Account for any reason whatsoever at any time without notice to you. Any balance in your Member Account at the time of such cancellation will be credited to your credit card or sent to you by your usual payment method. Notwithstanding the foregoing, the Company reserves the right, in its sole and absolute discretion (but without any obligation to do so), to void any winnings and confiscate any balance in your Member Account in any of the following circumstances: (1) If you have more than one active Member Acount; (2) If the name on your Member Account does not match the name on the credit card(s) used to make purchases through your Member Account; (3) If you participate in a Site promotion and withdraw before fulfilling the requirements of that particular promotion; (4) If you provide incorrect or misleading registration information; (5) If you are not of legal age; (6) If you reside in a jurisdiction where participation in the Site is prohibited by law; (7) If you have allowed or permitted, whether or not intentionally, someone else to play on the Site through your Member Account; (8) If you have attempted to "charge back" or reverse or otherwise challenge any of the purchases made through your Member Account or the Site otherwise, whether through a credit card, an e-check, and e-wallet, or any other payment method; OR (9) If you are found cheating or if it is determined by the Company that you have employed or made use of a system (including machines, computers, software, or other automated systems) designed specifically to defeat the other members. Prior to releasing any winnings to you, the Company reserves the right to conduct a security review and to require you to provide such identification or other information or documentation as the Company, in its sole and absolute discretion, deems necessary. If you fail to comply with any security request, the Company reserves the right to void any winnings in your Member Account. If you do not log onto your Member Account for a period of 180 days, the Company will use due diligence to contact you to refund your money. If the Company is unable to contact you for another 30 days after the expiration of the aforementioned 180-day period, any balance in your Member Account will be forfeited to the Company. Karma System The Site employs a method of collecting feedback from other Site users known as the "Karma System"; through the Karma System, you will be assigned a rating, which may be referred to as your "Karma." Integrity. You may not take any actions that may undermine the integrity of the Karma System. The Company may limit the number of Bets and Bet proposals you may place on the Site based upon the level of your Karma. If your Karma rating is -50 (negative fifty) or less, your membership in the Site may be suspended, and you may be unable to make or take Bets. Export. You acknowledge that your Karma consists of comments left by other users of the Site and a composite feedback number compiled by the Company, and that the composite number without the comments does not convey your full user profile. Because the Karma System is not designed for any purpose other than facilitating betting between users of the Site, you agree that you will not market or export your Karma rating from the Site to any Bulletin Board System other than another website operated by the Company. Import. The Site does not provide for any user to import Karma from other websites not operated by the Company to the Site. Liability of the Company The Company does not control the information provided by users of the Site even though that information is made available through the Site. You may find information provided by other users of the Site to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe betting when using the Site. Please note that there are also risks in using the Site of dealing with underage persons, with people acting under false pretense, and with dealing with persons subject to different legal systems than yours. By using the Site, you agree to accept such risks and that the Company will not be responsible to you for the acts or omissions of users on the Site. THE COMPANY, TOGETHER WITH ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS, AND SUPPLIERS, PROVIDE THE SITE AND THE SERVICES PROVIDED THROUGH THE SITE ON AN "AS IS" BASIS, WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESS, IMPLIED, OR STATUTORY, AS TO CONDITION OR QUALITY. THE COMPANY, TOGETHER WITH ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS, AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Some jurisdictions do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. IN NO EVENT WILL THE COMPANY OR ANY OF ITS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS, OR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SITE, SERVICES PROVIDED BY THE COMPANY, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). THE COMPANY'S LIABILITY, AND THE LIABILITY OF THE COMPANY'S SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ADVISORS, AND SUPPLIERS, TO YOU OR ANY OTHER PERSON IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) $100. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. By your use of the Site, you agree to hold the Company, together with its employees, officers, directors, licensees, distributors, wholesalers, affiliates, subsidiaries, advertising, promotion or other agencies, media partners, agents, advisors, and retailers (collectively, the "Indemnified Parties") harmless from, and will fully indemnify the Indemnified Parties from, for, and against, any and all claims, demands, costs, expenses, liabilities, and damages whatsoever (including, without limitation, reasonable attorneys' fees and costs of litigation, including the costs of any expert witnesses) that may arise as a result of: (i) your use or reuse of the Site; (ii) your use of any materials located on and found through the Site; (iii) your use or reuse of the Company's server; (iv) your participation in any Bet; (v) the consequence of any outcome of any Bet in which you participated; (vi) your breach of this Agreement; or (vii) your violation of any law or the rights of any other person. Access and Interference The Site contains robot exclusion headers. Much of the information on the Site is updated on a real time basis and is proprietary or is licensed to the Company by our users or other persons. You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without the Company's express written permission. Additionally, you agree that you will not: (i) take any action that imposes or may impose, as determined by the Company in its sole and absolute discretion, an unreasonable or disproportionately large load on the Site's infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your personal information, apart from your Karma rating) from the Site without the Company's prior written permission and, if applicable, the appropriate other person; (iii) interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or (iv) bypass the Site's robot exclusion headers or other measures that may be used by the Site to prevent or restrict access to the Site. Breach Without limiting other remedies that may be available to the Company, the Company may limit or terminate your use of the Site, including without limitation your ability to propose, accept, or otherwise participate in Bets, immediately remove your Bets, warn other users of the Site of your actions, issue a warning to you, and temporarily or indefinitely suspend or terminate your membership, if: (a) you breach this Agreement; (b) the Company is unable to verify or authenticate any information you provide to the Company; or (c) the Company believes that your actions may cause financial loss or legal liability for any of you, other users of the Site, or the Company. Privacy The Company's policy regarding privacy (the "Privacy Policy") is set forth in a separate document available on the Site. The Company views protection of each user's privacy as a very important principle of operating the Site. The Company's does not sell or rent your personal information to other persons for marketing or other purposes without your explicit consent, and subject in all respects to the provisions of the Privacy Policy. The Company stores and processes your information on computers located in Costa Rica that are protected by physical as well as technological security devices. The Company uses independent persons to verify and certify the Company's privacy principles. If you object to your information being transferred or used in the manner set forth in this Agreement or in the Privacy Policy, you must not use the Site. Notices Except as explicitly stated otherwise, any notices will be given by postal mail to the Company at poserFish.com S.A., Attn: Legal, P.O. Box (Apartado) 7661-1000, San Jose, Costa Rica and to you at the e-mail address you have provided to the Company, as such address appears in your registration for membership on the Site. Alternatively, the Company may provide you with notice by certified or registered mail, with all applicable postage prepaid and with a return receipt requested, if available, sent to the mailing address that appears in your registration for membership on the Site. Notice will be deemed received when it is received by the recipient, which, in the case of notices permitted to be sent by e-mail by this Agreement, will be 24 hours after an e-mail is sent to a correct address, and in the case of notices required or permitted to be sent by postal mail, will be on actual receipt by the recipient. |
