1. Definitions, Interpretation and Preliminary Matters1.1. Preliminary Matters:
1.1.1. This Agreement is a legally binding contract that governs all interactions between you and NGI. You may not use Services unless and until you understand and have agreed to this Agreement.
1.1.2. You can confirm your understanding of this Agreement and agree to this Agreement by clicking on a link on one of NGI’s web sites stating that you agree with respect to that site, or by checking a box on one of NGI’s web sites stating that you agree with respect to that site, or by using any Services, or by continuing to view any NGI web site after it has loaded and its adult nature would be apparent to a reasonable person.
1.1.3. You may not agree to this Agreement or use Services if the use of Services is illegal in your jurisdiction, if you are not yet of legal age to use Services in your jurisdiction, or if you are otherwise prohibited from using Services under the laws of the United States or of your jurisdiction.
1.1.4. You may print this Agreement or save a copy of it for your reference.
1.2.1. “Agreement” means this Terms of Service Agreement.
1.2.2. “Credit Card Processor” means a third party who provides credit card processing and billing services to NGI.
1.2.3. “Free Trial” means a period of time after the purchase of a Vstroker during which you may access the Member’s Area without charge.
1.2.4. “Member” means a person who has an active Membership or Free Trial.
1.2.5. “Membership” means the right to use any Videos in NGI’s Member’s Area in exchange for a monthly fee.
1.2.6. “Member’s Area” means that portion of any NGI web site which is only accessible to Members.
1.2.7. “Member’s Area Video” means a Video which is made available in the Member’s Area to users with a Membership.
1.2.8. “NGI” means NextGen Interactive LLC, an Oregon Limited Liability Company located at 1957 W. Burnside St. #1714, Portland, OR 97209 USA.
1.2.9. “PPV Video” means a Video which is sold on a NGI site as a stand-alone purchase or as part of a package with Tangibles or other PPV Videos rather than as part of a Membership.
1.2.10. “Service” includes Tangibles, Videos, VstrokerTV, the Vplayer software, any web site operated by NGI, any service provided by NGI and any firmware, software or images used in connection with NGI’s business.
1.2.11. “Shipper” means any third party common carrier package delivery service NGI uses to ship Tangibles orders, including the United States Postal Service.
1.2.12. “Shipping Cost” means the amount added to a customer’s shopping cart prior to check-out to cover the cost of shipping Tangibles to the customer plus labor, materials and other associated costs.
1.2.13. “Tangible” means physical items sold by NGI.
1.2.14. “Video” means a video recording, animated recording, streaming video content or other unit of media content or interactive experience available using a NGI web site or service.
1.2.15. “Vstroker” means that interactive device developed by NGI for the purpose of allowing the user to interact with compatible adult media.
1.2.16. “VstrokerTV” means the content library management system Members must use to manage their library of Member’s Area Videos.
1.2.17. “$” means the lawful currency of the United States of America.
1.2.18. Other terms may be defined in the body of the Agreement.
1.3.1. As used in this Agreement, accounting terms not herein defined, and accounting terms partly defined but to the extent not defined, shall have the respective meanings given to them under Generally Accepted Accounting Principles.
1.3.2. The words “hereof,” “herein,” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and section, subsection, schedule and exhibit references are to this Agreement unless otherwise specified.
1.3.3. Words of the masculine gender shall be deemed to include the feminine or neuter genders, and vice versa, where applicable.
1.3.4. Words of the singular number shall be deemed to include the plural number, and vice versa, where applicable, unless such interpretation would cause this Agreement to be interpreted in a manner contrary to the obvious intent.
1.3.5. Whenever the words “include,” “includes,” or “including” are used in this Agreement, they shall be understood to be followed by the words “without limitation.”
2.2. Credit Card Processors: NGI uses Credit Card Processors to process purchases made with your credit card. These Credit Card Processors have access to and will store your credit card billing information for their records and to bill you for any Membership you may have. Although NGI makes commercially reasonable attempts to use trustworthy Credit Card Processors, NGI makes no warranty about the security of your billing information and disclaims any and all liability related to the failure of a Credit Card Processor to secure your billing information.
2.3. Shippers: NGI uses Shippers to ship Tangibles to its customers. These Shippers have access to your shipping address and may store your shipping address information for their records. Although NGI makes commercially reasonable attempts to use trustworthy Shippers, NGI makes no warranty about the security of your shipping address information and disclaims any and all liability related to the failure of a Shipper to secure your shipping address information.
2.4. E-mail: NGI uses e-mail as its primary means of communication with you. You must provide a valid e-mail address with any order and NGI will keep your e-mail address on file and associate it with any Membership you may have. In addition:
2.4.1. From time to time, we may e-mail you important information related to your account which is not in the nature of marketing. You may not opt out of these e-mails.
2.4.2. From time to time, we may e-mail you marketing or promotional information related to NGI Services or the products or services of other companies with whom NGI conducts business. You may opt in or out of these e-mails at any time.
3. Intellectual Property3.1. Licenses:
3.1.1. PPV Videos: If you purchase a PPV Video, in consideration of the purchase price of the PPV Video, NGI grants you a personal, worldwide, non-assignable, non-transferrable, non-sublicenseable, non-exclusive, perpetual (subject to the provisions of this section 3) license to download and use that PPV Video for your personal entertainment only. You may transfer the PPV Video to an unlimited number of computers or devices on which you wish to use the Vstroker provided that those computers or devices are owned by you and that you use the PPV Video only for your own personal entertainment.
3.1.2. Member’s Area Videos: While you have an active Membership, NGI grants you a personal, worldwide, non-assignable, non-transferrable, non-sublicenseable, non-exclusive license to download and use Member’s Area Videos and VstrokerTV software for your personal entertainment only. You may transfer the Member’s Area Videos or VstrokerTV software to an unlimited number of computers or devices on which you wish you use the Vstroker provided that those computers or devices are owned by you and that you use the Member’s Area Videos and VstrokerTV software only for your own personal entertainment.
3.1.3. Vstroker Software and Firmware: If you purchase a Vstroker, in consideration of the purchase price of the Vstroker, NGI grants you a personal, worldwide, non-assignable, non-transferrable, non-sublicenseable, non-exclusive, perpetual (subject to the provisions of this section 3) license to use the Vstroker software and firmware only for your personal entertainment.
3.3. Rights Reserved: Other than the licenses granted in this section 3, NGI reserves all rights to all patents, trademarks, copyrights, images, logos, branding, service marks, trade secrets or other intellectual property owned or licensed by NGI. Except as otherwise provided in this section 3, you may not use any of NGI’s intellectual property without NGI’s express written consent. Use of the Services confers no intellectual property rights upon you except as stated herein.
4. Your Access to the Services4.1. Legal Use: By using the Services, you swear that it is legal to use the Services in your jurisdiction, that you are of legal age to use the Services in your jurisdiction, and that you are not prohibited by court or administrative order or by the law of the United States or of your jurisdiction from using the Services. If NGI becomes aware that you are disqualified from using the Services for any of these reasons, NGI may terminate any active Membership you have and NGI may cancel any order for Tangibles which has not yet been shipped. NGI will provide a refund for unshipped Tangibles orders it cancels for this reason, minus any costs or fees incurred or expected to be incurred in relation to the order, including the events leading to NGI’s discovery of your disqualification. NGI may also temporarily suspend your Membership or delay a pending Tangibles shipment while investigated suspected misconduct.
4.2. Intent of Use: By using the Services, you swear that you are using them for your own personal entertainment only and that you are not using them with the intent to violate NGI’s intellectual property rights, obstruct or interfere with the functioning of NGI’s web site or the Services, conduct business intelligence gathering or industrial espionage or harm NGI’s business in any manner. By using the Services, you also swear that you are not and will not use them for any illegal, immoral, obscene or unintended purpose, that you will not publicly display or supply or make available to minors or other prohibited persons any of the Services. By using the Services, you also swear that you are not using them for the purpose of initiating or assisting any civil or criminal action against NGI, and you agree not to join any class action or other civil lawsuit against NGI. If NGI learns that you are using the Services for any other purpose other than your own personal entertainment, or that you are publicly displaying or supplying or making available to minors or legally prohibited persons any of the Services, NGI may terminate any active Membership you have and NGI may cancel any order for Tangibles which has not yet been shipped. NGI will provide a refund for unshipped Tangibles orders it cancels for this reason, minus any costs or fees incurred or expected to be incurred in relation to the order, including the events leading to NGI’s discovery of your disqualification. NGI may also temporarily suspend your Membership or delay a pending Tangibles shipment while investigated suspected misconduct. If NGI learns that such violations of this Agreement constitute or possibly constitute a crime, NGI will fulfill any legal responsibilities it may have to notify the proper authorities in the appropriate jurisdiction of the relevant facts.
4.3. Automatic Updates: Some aspects of the Services may update automatically while or before you use them. NGI does this to continually enhance our products and your user experience. Such updates do not alter the terms of this Agreement. Continued use of the Services after any update indicates your continued agreement to this Agreement as it relates to any updated Services and your desire to continue using the Services in their updated state.
5. Billing, Shipping and Refunds5.1. Billing and Shipping for Purchases of Tangibles:
5.1.1. Shipping Cost: If you purchase Tangibles, NGI may add a Shipping Cost to your shopping cart prior to check-out and will clearly display the Shipping Cost as part of your total order price. In most cases, upon request NGI will inform you of the tracking number you may use to track your shipment. You are responsible for any duty, tax or VAT that may be charged in your country, but NGI at its sole discretion may offer you assistance in providing information or documentation to any competent customs authority making such a request.
5.1.2. Defective Tangibles: If you find within 30 days of delivery of a Tangible that it is defective, you should contact NGI at email@example.com. You will have two options: (1) If you wish to continue to use the Vstroker, NGI will resolve the issue if possible and may elect at its sole discretion to replace the Tangible with a new one. (2) If you wish you may return the defective Tangible to NGI at an address NGI will provide to you, but you must ship the Tangible back to us within 30 days of the date it was delivered to you. If you return a defective Tangible to us, NGI will test the Tangible and if NGI can confirm that it is defective, NGI will refund to your credit card the purchase price of that item and the Shipping Cost of that item. A Vstroker will not be considered defective if your computer, operating system, hard drive or any other aspect of your system’s setup does not meet the minimum requirements to use the Vstroker as noted on NGI’s web site and in the instruction pamphlet provided in your Vstroker box.
5.1.3. Return of Tangibles: If you have not opened a Tangible, you may return it to us within 30 days of the date it was delivered to you and NGI will refund to your credit card the purchase price of that item but not the Shipping Cost. This procedure will also apply in the case of rejected, unclaimed or undeliverable items, except that the amount refunded to you may be reduced by the amount of any additional costs or penalties (including return shipping fees) NGI may incur in this case.
5.1.4. Time Limitation: NGI will not issue a refund for any Tangible (including unopened Tangibles) if the return is initiated more than 30 days after the date it was delivered to you under any circumstances.
5.2.1. Entry of Information: If you wish to use your Free Trial, you must enter your credit card information accurately in the space provided. After doing so you will be considered a Member. Your credit card will not be charged until the Free Trial has expired. On the expiration date of your Free Trial, NGI will automatically charge your credit card for the first month’s Membership, and will continue to charge your credit card for a month’s Membership every 30 calendar days thereafter.
5.2.2. Cancellation: You may elect to cancel your Membership at any time by using the method communicated to you by NGI or the Credit Card Processor who processes your transactions. If you cancel your Membership, your credit card will no longer be charged for further months of Membership, and you will continue to be a Member until the date when your credit card would have been charged again had you not cancelled your Membership.
5.2.3. Refunds: NGI will not issue refunds for already-billed Memberships under any circumstances.
5.3.1. Download: If you purchase a PPV Video, after your credit card transaction has been successfully completed, NGI will give you instructions detailing how to download your PPV Video. Each purchase of a PPV Video is a stand-alone transactions and your credit card will not be charged again in relation to that purchase.
5.3.2. Refunds: NGI will not issue refunds for purchases of PPV Videos under any circumstances.
5.4.1. Processor Cascade: NGI may attempt to process your credit card transaction using more than one Credit Card Processor in case the first attempt to process the transaction is unsuccessful. If NGI retains your credit card information, NGI will do so only for so long as is necessary to automatically transmit the information to secondary Credit Card Processors.
5.4.2. Customer Service: Customer service regarding billing issues shall be handled by the Credit Card Processor who processes your payments. You should contact that company for any related customer service.
6. Disclaimer of Warranties and Limitation of Liability6.1. Disclaimer of Warranties: The Services are provided “as-is.” Other than as expressly set out in this Agreement, neither NGI nor its partners nor its employees, agents or owners make any specific promises about the Services, including their functioning, availability, reliability, ability to function on your computer or device, fitness for any particular purpose, merchantability, non-infringement or ability to provided the expected entertainment value. In some jurisdictions, certain warranties are implied by law; NGI excludes and disclaims any such warranties to the maximum extent permitted by law. Your rights will vary depending on your jurisdiction.
6.2. Third Parties: NGI creates and operates some Services in cooperation with third parties. NGI excludes and disclaims any warranties or liabilities in connection with the acts or omissions of any such third parties, their performance or non-performance of any functions related to the Services, their intellectual property, or elements of the Services provided by them. If your use of the Services includes your use of the Vstroker or the device manufactured by a third party known as a “Fleshlight,” NGI is not liable for any injury or damages caused by using the Vstroker or the Fleshlight in a manner inconsistent with their instructions, by excessive use of the Fleshlight or the Vstroker, by improper maintenance of the Fleshlight or the Vstroker or by use of the Fleshlight or the Vstroker in unsanitary or extreme conditions or unsuitable or unreasonable locations.
6.3. Limitation of Liability: To the maximum extent permitted by law, NGI and NGI’s suppliers and distributors and third party partners will not be responsible for indirect, special, consequential, exemplary or punitive damages, including damages to your person, your mental health, your computer or device or their data or your property or loss of goodwill or other intangible losses arising out of the use of the Services. To the maximum extent permitted by law, the total liability of NGI and its suppliers and distributors and third party partners for any claim under these terms made by you, your successors, heirs or permitted assigns, including for any implied warranties, is limited to the amount you paid NGI to use the Services (or if we choose, to supply you further Services of equal or greater value as a substitute). In no case shall NGI, its suppliers and distributors or third party partners be liable for damages or losses that are not reasonably foreseeable.
7. Indemnification: You agree to indemnify and hold harmless NGI, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Services, including any breach of this Agreement by you.
8. Miscellaneous8.1. Entire Agreement: This Agreement constitutes the entire agreement between NGI and you concerning the Services and the subject matter hereof.
8.2. Amendment: NGI may amend this Agreement at any time. NGI will notify you if the Agreement is amended. Continued use of the Services after NGI amends the Agreement constitutes your agreement to any such amendment.
8.3. Waiver of Default: No consent or waiver, express or implied, by NGI with respect to any breach of this Agreement by you or default by you shall be deemed or construed to be a consent or waiver with respect to any other breach or default by you of the same provision or any other provision of this Agreement. Failure on the part of NGI to complain of any act or failure to act by you or to declare you in breach shall not be deemed or constitute a waiver by NGI of any rights hereunder.
8.4. No Third Party Rights; Assignment: None of the provisions contained in this Agreement shall be for the benefit of or enforceable by any third parties including your creditors. You may not assign this Agreement or any of your rights or responsibilities under this Agreement to any third party. NGI may assign this Agreement or any of its rights or responsibilities under this Agreement, to the maximum extent permitted by law, upon its sole discretion and need only notify you of such assignment if it will materially alter your use of the Services or your customer experience with NGI.
8.5. Severability: Except where it would materially alter the terms and conditions of this Agreement, in the event any provision of this Agreement is held to be illegal, invalid or unenforceable to any extent, the legality, validity and enforceability of the remainder of this Agreement shall not be affected thereby and shall remain in full force and effect and shall be enforced to the greatest extent permitted by law.
8.6. Binding Agreement: This Agreement shall be binding upon the parties hereto and their respective heirs, personal representatives, successors and permitted assigns.
8.7. Acknowledgement: You acknowledge that you have been advised to seek your own independent legal advice with regard to this Agreement, the Services and all related matters.
8.8. Headings: The headings of the sections of this Agreement are for convenience only and shall not be considered in construing or interpreting any of the terms or provisions hereof.
8.9. Execution: This Agreement is considered executed when you agree to it via any of the methods described above.
8.10. Governing Law; Submission to Jurisdiction: This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon. NGI and you voluntarily submit to the non-exclusive jurisdiction of the State of Oregon and its courts, tribunals, government agencies and administrative agencies insofar as is necessary to enforce the provisions of this Agreement and to adjudicate any disputes or resolve any matters relating to the Agreement.
8.11. No Bond Required: You agree that NGI need not post any bond, collateral or security to enforce its rights under this Agreement.
8.12. Intentional Breach; Treble Damages: If, as a result of an intentional or malicious breach of any provision of this Agreement, you cause economic damages or hardship to NGI, NGI shall be entitled to collect treble damages from you, except in situations contemplated under section 3.2, in which case the provisions of that section control.
8.13. Waiver of Contrary Rights: To the maximum extent permitted by law, you waive any rights which are contradicted by the provisions of this Agreement.
8.14. Termination; Survival: NGI may terminate your access to and use of the Services at any time, with or without cause and with or without notice, effective immediately. You may terminate this Agreement at any time by discontinuing your use of the Services. The provisions and NGI’s rights under sections 1, 3, 5, 6, 7 and 8, and any other provisions which reasonably should be held to survive termination, shall survive termination of this Agreement.