Caladrius Communications, LLC

PeachBooth Terms of Service

As of July 2017

1.0 ACCEPTANCE

1.1 This web site and service is owned and operated by Caladrius Communications LLC, a New York business entity. By actively navigating, using, accepting or receiving telephone or video calls through PeachBooth, viewing or contributing content (herein known as the PeachBooth website (the “Service”), User is in agreement to these terms and conditions regarding the use of the Service (herein the “Terms of Service” or “Agreement”) and the Privacy Policy, found at https://www.peachbooth.com/privacy-policy/ which is incorporated herein by reference.  The terms “User”, “Provider” or “Subscriber”, (or referred to collectively as, “User”) shall refer to any individual or entity who access the Service, and uses the Service. For purposes of this Agreement, a Provider is deemed a PeachBooth User, as defined within Section 8.0,subject to all the policies, restrictions and obligations that a User must adhere to, including any additional policies, restrictions and obligations specific to the role of a Provider as established by PeachBooth and noted specifically throughout this Agreement. If User objects or does not agree to any of these terms or policies, User may not use the Service or provide services to the Service.

1.2 PeachBooth may, in its sole discretion, modify or revise the Terms of Service and any of its policies at any time, without notice, and the User agrees to be bound by such modifications or revisions. Nothing in these Terms of Service shall be deemed to confer any third-party rights or benefits. In the event that PeachBooth makes revisions to any of its terms or policies, PeachBooth will post a revision notice and revision date on the page where the policy has been last revised and it is the User’s responsibility to check for revisions to this Agreement.

1.3 These Terms of Service apply to any User of the Service, including a third party user who is merely web surfing the Service and does not create any account as well as contributors of content, information, and other materials on the Service.

1.4 The Service may contain links to third party web sites that are not owned or controlled by PeachBooth. PeachBooth has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites. PeachBooth cannot edit any third party web site. By using the Service, the User expressly relieves PeachBooth from any and all liability arising from User’s use of any third-party web site.

2.0 THE PEACHBOOTH SERVICE

2.1 PeachBooth provides and maintains this web site as a service to its Users.

2.2 PeachBooth is not a publisher or producer of Content. The Content is solely created and provided by PeachBooth Users.

2.3 PeachBooth is not a telecom provider but rather a “forwarder” of calls and offers similar features that many call centers provide to their customers.

2.4 PeachBooth does not alter or control the content or quality of any telecom or video call between Users on the Service.

2.5 PeachBooth does monitor and may record, transmit, broadcast, archive audio and provide as User Content in Subscriber’s member area any User conversations on the Service and offer them as Audio On Demand to Users of the Service after obtaining User consent. (See Section 14.0 below.)

2.6 Users may upload and post images and any other material that the User owns or has the right to use (the “User Content”) on the Service to his or her PeachBooth profile.

2.7 PeachBooth does not actively monitor, approve or delete the content appearing on the Service. PeachBooth generally does not pre-screen Users or User Content. However, PeachBooth reserves the right (but undertakes no duty) to do so and decides whether any item of User Content is appropriate and/or complies with this Agreement. PeachBooth may remove any User Content, PeachBooth profile and/or terminate a User’s access to the Services for posting or publishing any material in violation of this Agreement and any policy set forth on the Service, or for otherwise violating this Agreement (as determined by PeachBooth in its sole and absolute discretion), at any time and without prior notice. PeachBooth may also terminate a User’s access to this Service if PeachBooth has reason to believe the User is a repeat offender. If PeachBooth terminates User’s access to this Service, PeachBooth may, in its sole and absolute discretion, remove and destroy any data and files stored by User on its servers. Any action undertaken by PeachBooth in accordance with Section 2.7 shall be in PeachBooth’s sole and absolute discretion and shall not subject to User appeal. Each User and Provider are expected to conform to the User Content Guidelines as established by PeachBoothso as to maintain the integrity of the Service and all guidelines and policies shall be strictly enforced PeachBooth.

2.8 Each User is solely responsible for the User Content that he, she transmits through or uploads to the Service.

2.9 PeachBooth does not guarantee the quality of the substance of a conversation that a User provides or receives through the Service nor does PeachBooth guarantee, warrant, or endorse any good or service that a User and or Provider may offer to any other User, Provider or third party via the Service or outside of the Service.

2.10 PeachBooth does not prescreen or background check its Users. In the event that a User received threats of violence, harassment, “stalking”, physical harm or any other act that threatens the well-being of the User from another PeachBooth User, User is recommended to contact PeachBooth as well as his or her local law enforcement immediately and provide all relevant details. User should note the exact date and time the call took place.

2.11 PeachBooth prohibits all Users from accessing the Service in order to exchange personal details and arrange for in person meetings between Users of said Service. All in person contact is strictly prohibited under the terms of this Agreement.

2.12 PeachBooth does not provide a forum where Users may seek to obtain professional advice from other Users. Users should consult appropriate professional services outside the Service.

2.13 PeachBooth is not a “suicide hotline” and PeachBooth administrators, staff, and/or Users are not specially trained to handle mental health crisis management related issues. Users should consult appropriate professional services outside the Service. Users should contact the National Suicide Prevention Lifeline at 1(800)273-8255 or visit http://www.suicidepreventionlifeline.org/. If any User suspects that another User may be suicidal, User should provide the telephone information above to the other User and alert PeachBooth immediately.

3.0 ACCESS TO THE SERVICE

3.1 User affirms that it is fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Terms of Service, and to abide by and comply with these Terms of Service. In any case, User affirm’s that it is over the age of eighteen (18). The PeachBooth Service is not intended for persons under eighteen (18). If User is under eighteen (18) years of age, then User cannot use the Service.

3.2 All Users may access certain public areas of the Service. Each User understands that all the Service is selling or providing User is access to the Service.User needs to provide User’s own access to the Internet and telephone access, and any fees that User incurs to access the Service is User’s sole responsibility. The Service is not providing any hardware nor software to User and User thus needs to purchase or license the necessary hardware and software to access the Service. This Agreement covers all public and non-public areas of the Service.

4.0 USER ACCOUNTS

4.1 Viewing the Service is available without creating an account. To access certain features of the Service, all Users must register via Service and in some cases pay a monthly Subscription Fee for subscription only content.

4.2 In connection with completing the registration, each User agrees to provide true, accurate, current and complete information about User’s identity.

4.3 Each user is solely responsible for the activity that occurs on its User account, and User must keep the account password secure. User must notify the Service immediately of any breach of security or unauthorized use of User’s account.

4.4 User agrees to allow a thirty (30) day grace period upon any notification to the Service for any augmentation, adjustments, or deletion of account/User Content or change in membership status or any content adjustments therein.

5.0 USE OF THE SERVICE

5.1 Profiles must not contain any external web addresses or advertisements. Any User promoting a third party website risks account termination andloss of all unpaid revenue that may be due to User as a result of diverting traffic away from the Service.

5.2 Users shall not disclose any personally identifying information, including but not limited to, name, address, telephone numbers, email addresses, school or workplace information, or financial, legal or health related information to other Users and or Providers.

5.3 Users and or Providers shall not advertise any product or service via the Service.

5.4 Users and or Providers shall not solicit, offer or discuss any medical, legal or mental health advice via the Service.

5.5 Users and or Providers shall not solicit escort, wagering, or psychic medium services via the Service.

5.6 A User may not spam the Service or any other third party site or email with respect to the sale of any product either on or off of the Service.

5.7 Nudity or sexually explicit photos are not permitted to be uploaded to the Service by a User.

5.8 Users will not copy or distribute in any medium any part of this Serviceor any User Content, except where expressly authorized by PeachBooth or the owner of the User Content.

5.9 Users and Providers shall not record the conversations of any other User or third party while accessing and using the Service.

5.10 As a PeachBooth account holder User may submit User Content to the Service. User understands that PeachBooth does not guarantee any confidentiality with respect to any User Content that User submits.

5.11 User shall be solely responsible for User’s own Content and the consequences of submitting and publishing User’s User Content on the Service. User affirms, represents, and warrants that User owns or has the necessary licenses, rights, consents, and permissions to publish User Content that User submitted; and User licenses to PeachBoothroyalty free, all patent, trademark, trade secret, copyright or other proprietary rights in and to such User Content for publication on the Service pursuant to these Terms of Service. User understands that User’s conversations will be recorded by PeachBooth and may be subject to replay by the Service’s Subscribers in the subscription members area of the Service.

5.12 User retains all of User’s ownership rights in the User Content. However, by submitting User Content to PeachBooth, User hereby grant PeachBooth a worldwide, non-exclusive, royalty-free, sub-licenseable and transferable license to PeachBooth to reproduce, record, broadcast, transmit, retransmit, distribute, prepare derivative works of, display, and perform the User Content in connection with the Service and PeachBooth’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. User also hereby grants each other user/member of the Service a non-exclusive license to access User’s User Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. User understands and agrees, however, that PeachBooth may retain, but not display, distribute, or perform, server copies of User’s User Content that have been removed or deleted. The above licenses granted by User in user comments on the Service are perpetual and irrevocable.

5.13 User further agrees that User Content that User submits to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless User has secured permission from the lawful owner of the material or User is otherwise legally entitled to post the material and to grant PeachBooth all of the license rights granted herein.

5.14 User further agrees that User will not submit to the Service any User Content or other material that is prohibited herein by these terms.

5.15 User is strictly prohibited from communicating either verbally or digitally, uploading to or transmitting to or through the Service the following types of content or material that:

  • 5.15.1 Is illegal, or promotes or encourages illegal activity;
  • 5.15.2 Promotes, encourages, or engages in child pornography or the exploitation of children;
  • 5.15.3 Promotes, encourages, or engages in terrorism, violence against people, animals, or property;
  • 5.15.4 Promotes, encourages, or engages in any spam or other unsolicited bulk email, or computer or network hacking or cracking;
  • 5.15.5 Violates the Online Pharmacy Consumer Protection Act of 2008 or similar legislation, or promotes, encourages, or engages in the sale or distribution of prescription medication without a valid prescription;
  • 5.15.6 Infringes on the intellectual property rights of another User or any other person or entity;
  • 5.15.7 Violates the privacy or publicity rights of another User or any other person or entity, or breaches any duty of confidentiality that you owe to another User or any other person or entity;
  • 5.15.8 Interferes with the operation of the Service;
  • 5.15.9 Contains or installs any viruses, worms, bugs, Trojan horses or other code, files or programs designed to, or capable of, disrupting, damaging, or limiting the functionality of any software or hardware.
  • 5.15.10 User shall not solicit any commercial professional services of any kind via the Service.User shall not provide medical, legal or any professional advice via the Service. PeachBooth expressly disclaims any and all liability under this section. PeachBooth recommends that only medical and legal advice be obtained from qualified and licensed professionals.In the event that User is a duly licensed professional with respect to the professions noted in 5.15.10 above, User is still prohibited from providing professional services in any capacity via the PeachBooth Service.
  • 5.15.11 User hereby releases and indemnifies PeachBooth and its affiliated companies and the directors, officers, employees, agents, successors, advisors, consultants, and assigns of any of the foregoing from any and all causes of action and claims of any nature resulting from any act, omission, opinion, response, advice, suggestion, information, or service of any medical professional, mental health professional, physician or attorney, or any other User in a field requiring professional licensure or certification, who may be accessed through the PeachBooth Service.

5.16 PeachBooth does not endorse any User communication or User Content either communicated through or submitted to the Service by any User or other licensor, or any opinion, recommendation, or advice expressed therein, and PeachBooth expressly disclaims any and all liability in connection with User Content. PeachBooth does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and PeachBooth will remove all User Content if properly notified that such User Content infringes on another’s intellectual property rights. PeachBooth reserves the right to remove all User Content without prior notice.

5.17 Any compensation that may be earned by User via the Service shall be paid to User in accordance with Section 9 Fees, Payments and Refunds.

6.0 USER SUBMITTED CONTENT: SEXUALLY EXPLICIT CONTENT

6.1 Users are prohibited from placing on and/or transmitting through the Service any User Content that is considered sexually explicit material (“Explicit Content”) (See 7.2).

6.2 Under 18 U.S.C. 2256(2)(a), the meaning of “sexually explicit” follows:

  • 6.2.1 … “sexually explicit conduct” means actual or simulated—
  • 6.2.2 (i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
  • 6.2.3 (ii) bestiality;
  • 6.2.4 (iii) masturbation;
  • 6.2.5 (iv) sadistic or masochistic abuse; or
  • 6.2.6 (v) lascivious exhibition of the genitals or pubic area of any person;

6.3 For the purpose of User Content being submitted to this Service, “lascivious” shall be defined to mean any User Content that either portrays full frontal nudity or shows a person’s genitals.

6.4 User Content that is strictly prohibited from being placed on or transmitted through the Service is any material that (1) shows or portrays an individual under the age of eighteen (18) nude, partially nude, or wearing sheer clothing to appear nude, (2) depicts rape, violence, nonconsensual sexual contact or death of an individual, (3) bestiality, urination, scat play, and any other material deemed obscene.

6.5 PeachBooth does not provide legal advice. Furthermore, PeachBooth will not provide you with a legal opinion as to whether or not the User Content is considered obscene or violates any other law in any jurisdiction. If User questions the legality of his or her User Content, they should consult with an attorney prior to placing the User Content on the Service.

7.0 PROVIDER: DEFINED AND COMPENSATION

7.1 All Users of this Service who sign up and are approved as Providers on the Service are independent contractors and shall not be deemed employees of the Service. A Provider is a PeachBooth User that is in good standing on the Service who has been preapproved by PeachBooth to receive User telephone or video calls and earn a profit based on a fixed hourly rate whereby theProvider speaks with another user (herein “Provider”). A Provider is also considered a User of the Service and must adhere to all terms and conditions that a User must abide by.

7.2 It is the Provider’s sole responsibility to pay all charges, fees and taxes due from the profits earned on the Service.

7.3 All profits earned through the Service and that are paid to the Provider are deemed earnings by the Provider.

7.4 For all profits generated by the Service that are in excess of Five Hundred Ninety Dollars ($590.00), and only after submitting the documentation specified in 8.5 below to the Service, the Companion will then receive a 1099 MISC at year’s end reporting said earnings.

7.5 Prior to earning profits on the Service, a Companion must either 1) complete Form W-9 and submit it to the Service at the time the Companion is approved by PeachBooth or 2) submit a complete Form W-9 and submit it to the Service when the Companion determines that Companion has sold Five Hundred Ninety Dollars ($590.00) pre-tax payout limit (the “Payout Limit”). Filing a Form W-9 is required by law. A copy of the form may be downloaded here: https://www.irs.gov/pub/irs-pdf/fw9.pdf

7.6 No income generated from the profits earned by a Provider will be turned over to the Provider that exceeds the Payout Limit unless a properly completed and signed W-9 form is on file with the Service. Once a properly completed Form W-9 has been completed by the Provider and submitted to the Service, the Service will notify the Provider that either the form has been accepted or rejected (due to incomplete or inaccurate information). The Service has up to sixty days (60) to process the W-9 and notify the Provider of either the acceptance or rejection thereof.

7.7 Once a properly Form W-9 is on file, all income held that may exceed the Payout Limit will be paid to the Provider and payouts to the Provider will continue in accordance with the terms set forth in this Agreement.

7.8 In the event that Form W-9 is not properly filled out and/or timely provided to PeachBooth, the income exceeding the Payout Limit shall be held until PeachBooth receives Provider’s Form W-9. In the event that the Provider does not provide a true and correct form to PeachBooth within sixty (60) days of reaching the Payout Limit, PeachBooth shall access a twenty-five percent (25%) administrative fee to escrow Provider’s funds in a non-interest bearing account. If after twelve months after exceeding the Payout Limit Provider still has not submitted Form W-9, PeachBooth shall pay Provider an amount not to exceed the Payout Limit and retain all of the funds held on behalf of Provider. It is the Provider’s obligation to follow up that a correct Form W-9 is on file at all times so that the Provider may receive all monies due to Provider.

7.9 Provider is responsible to track and report all its income via the Service.Provider is responsible to file appropriate tax forms with federal, state and local authorities. PeachBooth does not file personal or business tax returns or schedules on your behalf with respect to the profits earned by Provider. PeachBooth will provide Provider with a Form Misc 1099 for all income earned via the Service that exceeds the Payout Limit. Any income earned by Provider that is below the Payout Limit, Provider is responsible for filing any and all applicable tax documents with the appropriate taxing authority, if necessary. PeachBooth recommends that Provider consult with Provider’s appropriate tax adviser if Provider has questions regarding taxation.

7.10 All tax liability for sales made through the Service and paid to the Provider are the responsibility of the individual users for income received by each user and for reporting their individual Form Misc-1099s with their tax returns.

7.11 All payment reports, product sales data and tax matters for all Provider profits shall be administered and controlled by PeachBooth and not any third party credit card processors, banks or payout service companies. Any questions regarding products and services found on the Service must be directed to PeachBooth.

8.0 USER FEES, PROVIDER PAYMENTS, & REFUNDS

8.1 PeachBooth has no basic fee for membership to the free areas of the Service (web site). However, some services on the Site such as the members area that archives or broadcasts telephone or video calls with the Providers will incur a monthly subscription charge at the rate set by PeachBooth. The prices for the members area subscription are posted on the PeachBooth web site and are disclosed to you prior to your credit card being charged.All PeachBooth member subscriptions shall auto renew every thirty days and User agrees that User’s credit card will be charged. You agree that PeachBooth is authorized to charge (and recharge) your Credit Card that you previously provided to PeachBooth. Provider is responsible for all charges associated with connecting to PeachBooth.

8.2 User acknowledges and agrees that your payment method may be charged by our processor, Stripe, for your use of the Service.

8.3 8.3 User agrees to pay any and all membership fees due for use of the Service at the time you access the Service. All prices and fees are non-refundable unless otherwise expressly noted.

8.4 PeachBooth expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be made in accordance with Section 1.2 above and are effective immediately without need for further notice to you.

8.5 Your payment method may be kept on file for the rebilling of your monthly subscription.

8.6 PeachBooth does not issue refunds based on the quality of conversation between Users, poor telephone connections or dropped calls between Users, or any other quality issue outside the control of PeachBooth. Any User that may be dissatisfied with our Service or dispute any charges, PeachBooth will make every commercially reasonable effort to resolve the dispute on terms that we, in our sole judgment, deem reasonable and fair to both parties.

8.7 User acknowledges and agrees that where refunds are issued to your payment method, PeachBooth’s issuance of a refund receipt is only confirmation that PeachBooth has submitted your refund to the payment method charged at the time of the original sale, and that PeachBooth has absolutely no control over when the refund will be applied towards your payment method’s available balance.

8.8 If for any reason PeachBooth receives notification of a chargeback, reversal, payment dispute, or is charged a penalty for any fee it previously charged to your payment method, User agrees that PeachBooth may pursue all available lawful remedies in order to obtain payment, including but not limited to, immediate cancellation, without notice to you, your account on the Service.

8.9 PeachBooth also reserves the right to charge you reasonable “administrative fees” or “processing fees” for (i) tasks PeachBooth may perform outside the normal scope of the Service, (ii) additional time and/or costs PeachBooth may incur in providing its Service, and/or (iii) your noncompliance with this Agreement (as determined by PeachBooth in its sole and absolute discretion). Typical administrative or processing fee scenarios include, but are not limited to (i) customer service issues that require additional personal time or attention; (ii) disputes that require accounting or legal services, whether performed by PeachBooth staff or by outside firms retained by PeachBooth; (iii) recouping any and all costs and fees, including the cost of User Content, incurred by PeachBooth as the results of chargebacks or other payment disputes brought by you, your bank or payment method processor. These administrative fees or processing fees will be billed to the payment method you have on file with PeachBooth or deducted from any earnings that may have accrued for User. PLEASE NOTE THAT THE FEES SPECIFIED IN THIS SECTION SOELY APPLY TO PEACHBOOTH’S TERMS OF SERVICE AS SET FORTH IN THIS AGREEMENT AND DO NOT, UNDER ANY CIRCUMSTANCE, ALTER, MODIFY, CHANGE OR CONTROL THE TERMS AND CONDITIONS OR POLICIES OF ANY THIRD PARTY CREDIT CARD PROCESSOR.

8.10 Provider agrees to receive compensation from the Service of [INSERT HOURLY RATE] (“Earnings”). When the Provider requests a check from PeachBooth, provided it meets the Minimum Payout Amount as defined in Section 8.12 below, PeachBooth will then issue a check for the entire amount owed to Provider. PeachBooth will not deduct any fees or charges from the Earnings unless those deductions as set forth in 8.13.

8.11 This is the fee for the services that are provided to the Provider as a platform for advertising, third party secured hosting, selling and processing both internally and via any third party payment processor.

8.12 A Provider may request payment of Earnings at any time provided that such request meets the following requirement: payment will only be issued to the Provider if said cumulative Earnings is in excess of Twenty Dollars ($20.00) (the “Minimum Payment Amount”). All Earnings below the Minimum Payment Amount will accumulate and be held by PeachBooth until the Minimum Payment Amount is reached. A Provider may not request payment of Earnings more than two times per calendar month.

8.13 If Provider requests any special handling of payment that is not utilized by PeachBooth, such as overnight courier, postage or wire transfers, for checks,Provider agrees that any administrative fees including any third party fees associated with such special request may be passed on to Provider at PeachBooth’s sole discretion.

8.14 Provider may in certain circumstances be assigned administrative fees, ACH transfer cost,or other cost associated with transfer of income,mail correspondence related to income,tax info,or any other unforeseen cost/time consumption conveyed beyond reasonable scope or by any breech of the terms of this Agreement.

9.0 INTELLECTUAL PROPERTY RIGHTS

9.1 The content on the PeachBooth Service, except all User Submissions (as defined above), including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features, marketing and business plans and the like (“Service Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to PeachBooth, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Service Content on the Service is provided to User as is for User’s information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners or PeachBooth. PeachBooth reserves all rights not expressly granted in and to the Service and the Service Content. User agrees to not engage in the use, copying, or distribution of any of the Service Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Service for any commercial purposes. If Users downloads or prints a copy of the Service Content and/or User Content for personal use, User must retain all copyright and other proprietary notices contained therein.

9.2 User agrees not to circumvent, disable or otherwise interfere with security related features of the PeachBooth Service or features that prevent or restrict use or copying of any content or enforce limitations on use of the PeachBooth Service or the content therein.

10.0 DIGITAL MILLENNIUM COPYRIGHT ACT – DMCA NOTICE AND COUNTER NOTICES

10.1 Our DMCA Policy can be found here https://www.peachbooth.com/privacy-policy/ and is incorporated herein by reference.

11.0 LIMITATIONS OF LIABILITY AND WARRANTY

11.1 IN NO EVENT SHALL PEACHBOOTH, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO USER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND/OR USER CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM USER’S ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF USER’S USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, 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. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

11.2 USER SPECIFICALLY ACKNOWLEDGE THAT PEACHBOOTH SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OBSCENE OR ILLEGAL CONDUCT OF USER OR ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH USER.

11.3 THE SERVICE IS CONTROLLED AND OFFERED BY PEACHBOOTH FROM ITS FACILITIES IN NEW YORK STATE IN THE UNITED STATES OF AMERICA. PEACHBOOTH MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.

11.4 USER AGREE THAT USER’S USE OF THE SERVICES SHALL BE AT USER’S SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, PEACHBOOTH, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND USER’S USE THEREOF. PEACHBOOTH MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE’S CONTENT/USER CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM USER’S ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY 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 SERVICES. PEACHBOOTH DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND PEACHBOOTH WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN USER AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, USER SHOULD USE USER’S BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

12.0 INDEMNIFICATION

12.1 To the extent permitted by applicable law, User agrees to defend, indemnify, and hold harmless PeachBooth, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) User’s use of and access to the Service; (ii) User’s violation of any term of these Terms of Service or policy established by PeachBooth; (iii) User’s violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that User’s Content caused damage to a third party.

12.2 This defense and indemnification obligation will survive these Terms of Service and User’s use of the Service.

13.0 TERMINATION

13.1 PeachBooth will terminate a User’s access to the Service if, under appropriate circumstances, the User violates this Terms of Service or any other policy established by PeachBooth.

13.2 PeachBooth reserves the right to decide whether User Content violates these Terms of Service or any policy for reasons other than copyright infringement, such as, but not limited to, failure to comply with PeachBooth’s policies, obscenity, or any other violation of any policy or law.

13.3 PeachBooth may at any time, without prior notice and in its sole discretion, remove such User Content and/or terminate a user’s account for submitting such material in violation of these Terms of Service or other policy.

13.4 PeachBooth reserves the right to decide whether User Content is appropriate and complies with the Terms of Service in regards to violations other than copyright infringement or privacy law, such as, but not limited to, hate crimes, obscene or defamatory material, or excessive length. PeachBooth may remove such User Content and/or terminate a User’s access for uploading such material in violation of the Terms of Service at any time, without prior notice and at its sole discretion.

13.5 PeachBooth maintains a zero tolerance policy relating to any illegal content. Child pornography, bestiality, rape, torture, snuff, death and/or any other type of obscene and/or illegal material shall not be allowed by PeachBooth. PeachBooth shall not condone child pornography and will cooperate with all governmental agencies that seek those who produce child pornography both domestically and overseas. User agrees to report to the Service any images that appear to depict minors on the Service. If a User sees any images or other depictions that is questionable on the Service, the User agrees to immediately report these images by emailing PeachBooth at help@peachbooth.com. Your report will remain confidential from other Users of the Service.

14.0 USER PRIVACY: CALL RECORDING AND USE ON SERVICE

14.1 User conversations between other Users of the Service and that are conducted via the Service will be recorded by PeachBooth and may be offered for Audio on Demand replay in the member subscription area of the Service.

14.2 Users of the Service consent to the monitoring and recording of any conversation initiated through the Service and understand that their voice and the content of the conversation may be recorded so that other Users who have subscribed to the members area can listen to the Audio On Demand replay at any time.

14.3 Any Users of the Service, at the time of creating a User Account on the Service, must agree to the terms set forth in Section 14.0 by checking the box they the User consents to said monitoring and recording. In addition, prior to any call between User and any other User of the Service, the User will be given the opportunity to opt out and decline call monitoring or recording before the call is connected.

14.4 The User explicitly understands that their recorded conversations may be listened to by other Users and members of the Service via the web site for entertainment purposes only.

14.5 Users are expected to comply fully with the terms and conditions set forth in this Agreement and are not to reveal any personal information as set forth herein.

14.6 In the event that a User wishes to opt out of the recording of any conversation, User must refrain from and not use the Service.

14.7 User will be given the opportunity prior to call connection to disconnect from the call and refrain from User’s call being monitored or recorded.

14.8 Any content recorded and created becomes the intellectual property of PeachBooth and User retains no rights in said intellectual property.

14.9 PeachBooth shall be considered a party to the conversation via the Service.

14.10 User represents that he or she has read the Terms and Conditions of the Service, its Privacy Policy, and statement on User Content Recording and fully understands that User waives any and all privacy right User has in the conversation or content transmitted and hereby waives any legal claim against PeachBooth for the recording or dissemination of the call or Content on the Service.

15.0 GENERAL TERMS

15.1 Assignment: These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by User, but may be assigned by PeachBooth without restriction.

15.2 Compliance with local laws: PeachBooth makes no representation or warranty that the content available on the Service is appropriate in every country or jurisdiction, and access to the Service from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access the Service are responsible for compliance with all local laws, rules, and regulations.

15.3 Governing Law & Jurisdiction: This Agreement shall be governed by and construed in accordance with the federal law of the United States and the laws of the State of New York, whichever is applicable, without regard to conflict of laws principles. You agree that any action relating to or arising out of this Agreement shall be brought exclusively in the state or federal courts of New York County, New York, and you hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to) jurisdiction and venue in the state and federal courts of New York County, New York.

15.4 Titles & Headings: The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.

15.5 Successors and Assigns: This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, and assigns.

15.6 Communications on the Service: Unless otherwise designated by PeachBooth as private, all communications occurring on the Service are public and available to other Users. All messages transmitted to the Service shall be deemed to be readily accessible to the general public. Users should not use this Service 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 the Service can and may be read by the operators of this Service, regardless of whether they are the intended recipients of such messages.

15.7 Force Majeure: PeachBooth 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 or software, for so long as such event continues to delay the Service’s performance.

15.8 Legal Fees & Costs: In the event any party shall commence any claims, actions, formal legal action to interpret and/or enforce any of the terms and conditions of this Terms of Service, or relating in any way to this Terms of Service, 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 attorneys’ fees and costs incurred in connection therewith, including attorneys’ fees incurred on appeal.

15.9 Entire Agreement: These Terms of Service, and all documents and policies incorporated herein by reference, constitute the entire Agreement between the parties with respect to User’s access and use of the Service and the content contained therein, User’s membership on the Service, and said Agreement supersedes and replaces all prior understandings or agreements, written or oral, regarding such subject matter.

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