Terms & Conditions
The following terms and conditions govern your use and access to the diabolic.com website, which currently includes:
(1) www.diabolic.com and any sub-domains;
(2) (collectively, the "Sites" or individually, a "Site"). These Terms and Conditions also govern your membership to a Site (or Sites) if you become a member. By accessing, using, printing or downloading any material from any of the Sites, or becoming a member to any one of the Sites, you agree to be bound by these Terms and Conditions. If you do not agree to be bound by these Terms and Conditions, you may not enter any of the Sites, you must exit the Site immediately and you may not use or access any of the Sites or print or download any materials from them. You may use and access the Sites only in accordance with these Terms and Conditions.
You are solely responsible for obtaining access to the Sites and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Sites (i.e., computers, modems, and software, including the most recent versions of Internet browsers, applications, and plug-ins).
I. Adult Entertainment
The Sites offer online entertainment services that may be deemed adult in nature and which may contain graphic depictions and descriptions of explicit sexual activity. You acknowledge that you are aware of the nature of the content provided by these Sites, that you are not offended by such content and that you access the Sites freely, voluntarily and willingly.
II. Age of majority
You represent and warrant that 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 Sites or print or download any Materials (as defined below) from them.
III. No Child Pornography
You understand that all models appearing on the Sites are, and were at the time of all recorded images, at least 18 years of age, and that the Sites contain no child pornography. We take a strong and definite stand against child pornography and only publish images of consenting adults for consenting adults. If you see any images, real or simulated, depicting minors engaged in sexual activity within the Sites, pleasereport it to us. Include with your report any appropriate evidence, including the date and time. All reports will immediately be investigated and the appropriate action will be taken. 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 www.asacp.org.
IV. Protected Speech
You further acknowledge that the Sites contain only images protected by the First Amendment to the United States Constitution. If you are seeking obscenity or child pornography, please leave this Site immediately.
V. Trademark Information
diabolic and the diabolic LOGO are trademarks and service marks of Gemgrab Inc. ("Gemgrab Inc.") in the United States. 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. diabolic trademarks may not be used publicly except with express written permission from Gemgrab Inc., and may not be used in any manner that is likely to cause confusion among consumers, or in any manner that disparages or discredits diabolic.
All content included on the Sites, such as all literary works, text, pictorial and graphical works, photographs, video and audio clips, motion pictures and other audio visual works, video games, music, soundtracks, button icons, streaming data, animation, images, compilations, .RAM files, .AVI files, or any other software files (in object code or source code format) (collectively, "Materials") is the property of Gemgrab Inc. or its content suppliers and is protected by United States and international copyright laws. The compilation of all content on each Site is the exclusive property of Gemgrab Inc. and protected by United States and international copyright laws.
VII. Access to Site
The Sites may contain links to other sites. Please be aware that we are not responsible for the privacy practices of such other sites. We encourage our users to be aware that when they leave our Sites they should read the privacy statements of each and every web site that collects personally identifiable information.
VIII. Restrictions on Use of Sites
Without the express prior written authorization of Gemgrab Inc. you may not:
(A) duplicate a Site or any of the Materials contained therein (except as expressly provided above in Section VII);
(B) create derivative works based on a Site or any of the Materials contained therein;
(C) use the Sites or any of the Materials contained therein for any commercial purpose, or for any public display or public performance;
(D) sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time-share, use as a service bureau or otherwise assign to any third party the Materials or any of your rights to access and use the Materials as granted in Section VII above;
(E) remove any copyright or other proprietary notices from the Site or any of the Materials contained therein;
(F) frame or utilize any framing techniques in connection with the Sites or any of the Materials contained therein;
(G) use any meta-tags or any other "hidden text" using diabolic's name or marks;
(H) "deep-link" to any page of any of the Sites except for the homepage, www.diabolic.com;
(I) circumvent any encryption or other security tools used anywhere on the Sites (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 any of the Sites);
(J) use any data mining, robots or similar data gathering and extraction tools on the Sites;
(K) decompile, reverse engineer, or disassemble any of the software aspect of the Materials except and only to the extent permitted by applicable law, or
(L) bookmark any page of any Site beyond the membership log-in screen.
You may access the non-public portion of any Site only by being a member in good standing to that Site. You may become a member of a Site by completing an online registration form, and paying the appropriate fee, which may be recurring in nature. Upon submission of the online registration form, diabolic or its authorized agent will process the application. In connection with completing the online registration form, you agree to: (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (such information being the "Registration Data") and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete at all times while you are a member. If you provide any information that is untrue, inaccurate, not current or incomplete, or diabolic or any of its authorized agents have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, diabolic has the right to suspend or terminate your account and refuse any and all current or future use of the Site or Sites.
b. Member Account, Password and Security
As part of the registration process, you will select a unique user name and password which you must provide in order to gain access to the non-public portion of a Site. You represent and warrant that you will not disclose to any other person your unique user name and password and that you will not provide access to any Site to anyone who is below the age of majority in your jurisdiction. You are solely responsible for maintaining the confidentiality of your user name and password and are fully responsible for all activities that occur under your user name and password. You agree to (1) immediately notify diabolic of any unauthorized use of your user name and password or any other breach of security, and (2) ensure that you exit from your account at the end of each session.
You agree to pay all membership fees when due. diabolic posts the current membership fees for each Site as part of the registration process. diabolic reserves the right to change any Site's membership fees at any time, with or without prior notice to you. At the time of registration, you must select a payment method. diabolic reserves the right to contract with a third party to process all payments. Such third party may impose additional terms and conditions governing payment processing. Your account will be deemed past due if it is not paid in full by the payment due date. If your account become past due, you agree to pay interest on the past due amount at a monthly rate of 1.5%, or the highest amount allowed by law, whichever is lower, compounded daily, plus any additional collection costs, credits, charge backs and attorneys fees. Your card issuer agreement may contain additional terms with respect to your rights and liabilities as a card holder. You are responsible for reimbursing diabolic for all credit card charge backs, dishonored checks and any related charges.
d. Billing Errors
If you believe that you have been erroneously billed, please notify us immediately of such error. If we do not hear from you within thirty (30) days after such billing error first appears on any account statement, such fee will be deemed acceptable by you for all purposes, including resolution of inquiries made by your credit card issuer.
e. Refund Policy
diabolic does not provide cash refunds. We may, however, grant credits in the form of free monthly memberships to resolve customer service issues. The billing system used by diabolic or our authorized agents provides extensive credit card fraud protection measures and our Sites include many features to protect users from accidental charges. Therefore, refunds to your credit card will be provided only under the rarest of circumstances such as persistent technical problems originating with our equipment.
You may cancel your membership at any time by providing:
(A) our customer service department with a notice of your intent to cancel the membership along with your user name and password; and
(B) any outstanding fees owed for your membership. Upon our processing of your request to cancel your membership, you will no longer have access to the non-public areas of the Site or Sites to which you were a member.
diabolic may terminate your access to a Site at any time, with or without advance notice, if: (1) diabolic believes that you have breached any material term of these Terms and Conditions, (2) you fail to pay any amount due by the payment due date; or (3) diabolic decides to cease operations or to otherwise discontinue any of the Sites. Further, you agree that neither diabolic nor any third party acting on our behalf shall be liable to you for any termination of your membership or access to any of the Sites. You agree that if your account is terminated by diabolic, you will not attempt to re-register as a member without prior written consent from diabolic.
XI. Disclaimer of Warranty
YOU EXPRESSLY AGREE THAT USE OF ANY OF THE SITES OR ANY OF THE MATERIALS CONTAINED THEREIN IS AT YOUR DISCRETION AND AT YOUR OWN AND SOLE RISK.THE SITES 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. diabolic DOES NOT OPERATE ITS AFFILIATES' WEBSITES. diabolic MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SITES OR ANY MATERIALS CONTAINED THEREIN WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES diabolic MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE SITES OR ANY OF THE MATERIALS CONTAINED THEREIN. YOU ALSO UNDERSTAND AND AGREE 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. diabolic MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SITES OR ANY TRANSACTION ENTERED INTO THROUGH THE SITES AND IS NOT RESPONSIBLE FOR ANY USE OF CONFIDENTIAL OR PRIVATE INFORMATION BY SELLERS OR THIRD PARTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
XII. Limitation of Liability
IN NO EVENT SHALL diabolic (OR ITS LICENSORS, AGENTS, SUPPLIERS, OR SERVICE PROVIDERS) BE LIABLE TO YOU, OR ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS OR GOODWILL, 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 diabolic HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL diabolic' MAXIMUM TOTAL AGGREGRATE LIABILITY HEREUNDER FOR DIRECT DAMAGES EXCEED THE TOTAL FEES ACTUALLY PAID BY YOU FOR USE OF A SITE OR SITES FOR A PERIOD OF NO MORE THAN SIX (6) MONTHS FROM THE ACCRUAL OF THE APPLICABLE CAUSE OR CAUSES OF ACTION.
You agree to indemnify diabolic against any and all claims, liabilities, and costs, including reasonable attorneys' fees, reasonably incurred in the defense of any claim or suit arising out of or otherwise related to these Terms and Conditions, including without limitation, any breach by you of this Agreement. diabolic 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. diabolic may participate in the defense of such claim or defense at its own expense, and choose its own legal counsel, but is not obligated to do so.
Some Web sites which are linked to the Sites are owned and operated by third parties not associated with our Company or our Affiliates. Because diabolic has no control over such sites and resources, you acknowledge and agree that diabolic is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, services, products, or other materials on or available from such sites or resources. You further acknowledge and agree that diabolic 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 in reliance on any such third-party content, goods or services available on or through any such site or resource. If you decide to access any such third party sites, you do so entirely at your own risk and subject to any terms and conditions and privacy policies posted therein.
XV. Notice of Claimed Infringement
diabolic respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide diabolic' Copyright Agent the following information:
- (A) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- (B) description of the copyrighted work or other intellectual property that you claim has been infringed;
- (C) a description of where the material that you claim is infringing is located on a Site;
- (D) your address, telephone number, and email address;
- (E) 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;
- (F) 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:
Attorney at Law
Law Offices of Clyde DeWitt
A Nevada Professional Corporation
6525 West Warm Springs Road, Suite 100
Las Vegas, NV 89118-4679
(702) 386-1756; fax (702) 441-0308
Please do not send other inquires or information to our Designated Agent.
XVI. Notice and Take Down Procedures
The Site implements the following "notice and takedown" procedure upon receipt of any notification of claimed copyright infringement. 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. 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 Paragraph 19 and §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. 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 these Terms and Conditions to stay current on any such changes.
XVII. General Provisions
a. Governing Law
These Terms and Conditions and all matters arising out of or otherwise relating to these Terms and Conditions shall be governed by the laws of the Republic of Cyprus, excluding its conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms and Conditions. The parties hereby submit to the personal jurisdiction of the state and federal courts of the Republic of Cyprus. Exclusive venue for any litigation or arbitration permitted under this Agreement shall be with the courts located in the Republic of Cyprus.
b. Rights 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 of Sections VII or VIII, 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.
If there is a dispute between the parties arising out of or otherwise relating to these Terms and Conditions, 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 may submit the issue to binding arbitration in accordance with the then-existing Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted in the Republic of Cyprus, and conducted by a single arbitrator, knowledgeable in Internet and e-Commerce. The party bringing the action shall be responsible for paying all costs for arbitration, including the arbitrator's fees. Each party shall bear its own attorneys' fees (except if the matter is for the collection of a debt owed in which case the prevailing party shall be awarded its attorneys fees, all arbitration costs and the arbitrator fees (if applicable), in addition to all other applicable remedies). 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 these Terms and Conditions; 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. This Section shall not apply to any breach (or any allegation which if true would constitute a breach) of Sections VII or VIII, or any other matter relating to intellectual property.
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. Neither these Terms and Conditions nor any rights granted hereunder may be sold, leased, assigned or otherwise transferred, in whole or in part by you.
If for any reason a court of competent jurisdiction or an arbitrator finds any provision of these Terms and Conditions, or any portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of these Terms and Conditions will continue in full force and effect.
f. No Waiver
Failure by either party to enforce any provision of these Terms and Conditions will not be deemed a waiver of future enforcement of that or any other provision, and no waiver of one breach will constitute a waiver of subsequent breaches of the same or of a different nature.
g. Complete Agreement
These Terms and Conditions constitute the entire agreement between the parties with respect to your access and use of any of the Sites and the Materials contained therein, and your membership with any of the Sites, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter (except, to the extent applicable, any Download Agreement or similar contract governing the parties' rights and responsibilities in connection with any specific Materials downloadable from a Site). No amendment to or modification of these Terms and Conditions will be binding unless in writing and signed by a duly authorized representative of both parties.
h. Relationship Between the Parties
diabolic is an independent contractor; nothing in these Terms and Conditions shall be construed to create a partnership, joint venture or agency relationship between the parties.
Section and subsection headings of these Terms and Conditions are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.
j. Force Majeure
diabolic shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond its 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, network or software, including Y2K errors or omissions, for so long as such event continues to delay diabolic' performance.
You understand and acknowledge that the software elements of the Materials may be subject to regulation by agencies of the U.S. Government, including the U.S. Department of Commerce, which prohibits export or diversion of software to certain countries and third parties. You will not assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. You warrant that you will not license or otherwise permit anyone not approved to receive controlled commodities under applicable U.S. laws and regulations and that you will abide by such laws and regulations.
l. Government Rights
The software elements of the Materials have been developed at private expense and is "commercial computer software" or "restricted computer software" within the meaning of the FARs, the DFARs, and any other similar regulations relating to government acquisition of computer software. Nothing contained herein will be deemed to: (1) grant any government agency any license or other rights greater than are mandated by statute or regulation for commercial computer software developed entirely at private expense, or (2) restrict any government rights in any extensions or custom solutions provided hereunder and developed at government expense.
m. Other Jurisdictions
diabolic makes no representation that this Site or any of the Materials contained herein 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 this Site from such locations do so on their own initiative and are solely responsible for compliance with all applicable local laws.
XVIII. Consumer Rights Information - California Residents Only
This Section applies only to Californian residents. In compliance with Section 1789 of the California Civil Code, please note the following:
Name of Service Provider:
Users who wish to gain access to the members-only section of any of the Sites must be a member in good standing. diabolic posts the current membership fees for each Site prior to the registration page for each Site. diabolic reserves the right to change the membership fees at any time. Users may contact diabolic at: firstname.lastname@example.org in order to resolve any billing disputes or to receive further information about any of the Sites.
XIX. Complaints - Californian Residents
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.