Terms of Service
Last revised Dec. 14, 2023
1. Definitions, Interpretation and Preliminary Matters
1.1. Preliminary Matters:
1.1.1. This Agreement is a legally binding contract that governs all interactions between you and
ModelClips. You may not use Services unless and until you understand and have agreed to this
Agreement. Your use of the Website and the Services constitutes agreement to these Terms of
Service.
1.1.2. You may not agree to this Agreement or use Website or the 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. If you do not agree to these Terms of Service
or if it is not legal for you to use the Website or the Services in your jurisdiction, you must
leave the Website immediately and cease all use of the Services.
1.1.3. Section
230(d) Notice: In accordance with 47 U.S.C. § 230(d), you are hereby notified that
parental control protections (including computer hardware, software, or filtering services) are
commercially available that may help in limiting access to material that is harmful to minors.
You may find information about providers of these protections on the Internet by searching
"parental control protection" or similar terms.
1.1.4. Child Pornography
Prohibited. The Company prohibits pornographic content involving minors. The Company only allows
visual media of consenting adults for consenting adults on the Website. If you see any visual
media, real or simulated, depicting minors engaged in sexual activity within the Website, please
promptly report this to the Company at [email protected]. Please include with your report all
appropriate evidence, including the date and time of identification. The Company will promptly
investigate all reports and take appropriate action. The Company fully cooperates with any
law-enforcement agency investigating child pornography.
1.1.5. You may print this
Agreement or save a copy of it for your reference.
1.2. Definitions of Terms in this Agreement:
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 ModelClips.
1.2.3. "Free Trial" means a period of time
after the purchase of a Tangible 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
ModelClips' Member's Area in exchange for a monthly fee.
1.2.6.
"Member's Area" means that portion of any ModelClips 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.
"PPV Video" means a Video which is sold on a ModelClips 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.
1.2.9. "Service" includes Tangibles, Videos, Vstroker.com
content, the Video's software, any web site operated by ModelClips, any service provided by
ModelClips and any firmware, software or images used in connection with ModelClips'
business.
1.2.10. "Shipper" means any third party common carrier package
delivery service ModelClips uses to ship Tangibles orders, including the United States Postal
Service.
1.2.11. "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.
1.2.12.
"Tangible" means physical items sold by ModelClips.
1.2.13.
"ModelClips" means Nextgen Interactive LLC, with registered offices at 2720 NW
35th Ave. Portland, OR, U.S.A., and any of its affiliates or licensees who may
provide Tangibles or Services under license in your jurisdiction.
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 ModelClips web site or
service.
1.2.15. "Website" means ModelClips.com and all
sub-pages.
1.2.16. "$" means the lawful currency of the United States of
America.
1.2.17. Other terms may be defined in the body of the Agreement.
1.3. Interpretation 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. Personal Information and Privacy Policy
2.1. Retention of Personal Information: To manage our relationship with you, ModelClips
retains some of your personal information. Except as disclosed herein, ModelClips will not use,
give, sell, license or allow third parties to access your personal information without your
consent.
2.2. Credit Card Processors: Vstroker 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 ModelClips makes commercially reasonable attempts to use
trustworthy Credit Card Processors, ModelClips 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: ModelClips 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 ModelClips makes
commercially reasonable attempts to use trustworthy Shippers, ModelClips 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: ModelClips uses e-mail as its primary means of communication with you. You must
provide a valid e-mail address with any order and ModelClips 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 ModelClips
Services or the products or services of other companies with whom ModelClips conducts business.
You may opt in or out of these e-mails at any time.
2.5. Records:For legal and business purposes, ModelClips maintains records of your
transactions with ModelClips. ModelClips may use this information to optimize its business
practices or send you marketing e-mails as mentioned in section 2.4.2. ModelClips may make such
information available to third parties with whom Vstroker has contracted to provide business
consulting services. If ModelClips provides such records to third parties for this purpose
ModelClips will do so in a manner that does not connect your name or other identifiable personal
information with your interactions with ModelClips' Services. ModelClips will not provide
such records to third parties for those third parties' own marketing
purposes.
2.6. Data on Use of the Services: ModelClips considers your
interactions with the Services to be private sexual activity and does not collect data regarding
your interactions with the Services.
2.7. Privacy Policy: Further Information
on your privacy may be found in our Privacy Policy.
3. Intellectual Property
3.1. Licenses:
3.1.1. PPV Videos: If you purchase a PPV Video, in consideration of the purchase price of
the PPV Video, ModelClips 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 Tangible 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, ModelClips grants you a personal,
worldwide, non-assignable, non-transferrable, non-sublicenseable, non-exclusive license to
download and use Member's Area Videos and Vstroker.TV software for your personal
entertainment only. You may transfer the Member's Area Videos or Vstroker.com software to
an unlimited number of computers or devices on which you wish you use the Tangible provided that
those computers or devices are owned by you and that you use the Member's Area Videos and
ModelClips.TV software only for your own personal entertainment.
3.1.3.
Vstroker.com Software and Firmware: If you purchase a Tangible, in consideration of the
purchase price of the Tangible, ModelClips 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 Tangible's software and firmware only for your personal
entertainment.
3.2. Violation of Intellectual Property Rights: If you attempt to access Member's
Area Videos without having an active Membership or access PPV Videos without having purchased
them, attempt to disable, circumvent or render ineffective the security features of any Video or
Services or of your Tangible, attempt to reverse engineer, decompile, or extract the source code
of any Service or of your Tangible, copy (other than for personal use), modify, distribute, sell
or lease any Service, or if you upload any Service to any server where it will become available
to other persons by any means or otherwise make available by any means any Service to other
persons, or if you use any Service for commercial purposes not expressly authorized by
ModelClips, then: (1) any licenses granted to you by ModelClips shall terminate and become null
and void; (2) ModelClips may suspend or cancel your Membership without further notice or refund
and (3) ModelClips may elect to avail itself of any remedies available under this Agreement or
at law or equity. For each and every instance of uploading any Service to any server where it
will become available to other persons by any means or of making available by any means any
Service to other persons, if ModelClips' actual economic damages cannot be determined or
are less than $100,000, you agree to pay ModelClips liquidated damages of
$100,000.
3.3. Rights Reserved: Other than the licenses granted in this
section 3, ModelClips reserves all rights to all patents, trademarks, copyrights, images, logos,
branding, service marks, trade secrets or other intellectual property owned or licensed by
ModelClips. Except as otherwise provided in this section 3, you may not use any of
ModelClips' intellectual property without ModelClips' express written consent. Use of
the Services confers no intellectual property rights upon you except as stated herein. You are
absolutely prohibited from using any Service for any commercial purpose not expressly authorized
by ModelClips.
4. Your Access to the Services
4.1. 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 your jurisdiction from
using the Services. If ModelClips becomes aware that you are disqualified from using the
Services for any of these reasons, ModelClips may terminate any active Membership you have and
ModelClips may cancel any order for Tangibles which has not yet been shipped. ModelClips 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 ModelClips discovery of your disqualification. ModelClips 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 ModelClips' intellectual property rights, obstruct or interfere with the
functioning of ModelClips' web site or the Services, conduct business intelligence
gathering or industrial espionage or harm ModelClips' 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 ModelClips, and you agree not to join any class action or other civil lawsuit
against ModelClips. If ModelClips 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, ModelClips may
terminate any active Membership you have and ModelClips may cancel any order for Tangibles which
has not yet been shipped. ModelClips 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 ModelClips' discovery of your
disqualification. ModelClips may also temporarily suspend your Membership or delay a pending
Tangibles shipment while investigated suspected misconduct. If ModelClips learns that such
violations of this Agreement constitute or possibly constitute a crime, ModelClips 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. ModelClips 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 Refunds
5.1. Billing and Shipping for Purchases of Tangibles:
5.1.1. Shipping Cost: If you purchase Tangibles, ModelClips 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 ModelClips 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 ModelClips 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 ModelClips at [email protected]. You will have two options: (1) If
you wish to continue to use the Tangible, ModelClips 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 ModelClips at an address ModelClips 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, ModelClips will test the Tangible and if ModelClips can
confirm that it is defective, ModelClips will refund to your credit card the purchase price of
that item and the Shipping Cost of that item. A Tangible 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 Tangible as noted on ModelClips' web site and
in the instruction pamphlet provided in your Tangible's packaging.
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 ModelClips 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)
ModelClips may incur in this case.
5.1.4. Time Limitation: ModelClips 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. This clause does
not alter any Credit Card Processor's terms and conditions, which may give you additional
opportunities for refund.
5.2. Membership Billing:
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, ModelClips 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. If you purchase an automatically
renewing subscription, you authorize the Company or the applicable third-party payment processor
to charge the payment method on file on the first day of each billing period for the relevant
subscription, and if the payment method on file becomes invalid due to an expired credit card or
other similar reason and the Company (or applicable third-party payment processor) is unable to
charge you on the next billing period, the Company may immediately revoke your access to any
subscription service you have ordered until you update your payment method. If you fail to
update your payment method within a reasonable amount of time, the Company may cancel your
subscription.
5.2.2. Cancellation: You may elect to cancel your Membership at
any time by using the method communicated to you by ModelClips 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.
5.3. PPV Video Billing:
5.3.1. Download: If you purchase a PPV Video, after your credit card transaction has been
successfully completed, ModelClips 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.
5.4. General Terms Regarding Billing:
5.4.1. Processor Cascade: ModelClips 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 ModelClips retains your credit card information, ModelClips 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. If you wish to dispute a charge you should do so
with the Credit Card Processor. If you fail to dispute a charge within 30 days, you waive any
disputed charges.
6. Disclaimer of Warranties and Limitation of Liability
6.1. Disclaimer of Warranties:The Services are provided "as-is." Other than as
expressly set out in this Agreement, neither ModelClips 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; ModelClips
excludes and disclaims any such warranties to the maximum extent permitted by law, and you agree
to waive any such warranties to the maximum extent permitted by law. Your rights will vary
depending on your jurisdiction.
6.2. Third Parties: ModelClips creates and
operates some Services in cooperation with third parties. ModelClips also provides links to or
promotes third-party products and services which may or may not function or be operated in
conjunction with ModelClips. ModelClips 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.
6.3. Limitation of Liability: To
the maximum extent permitted by law, ModelClips and ModelClips' 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
ModelClips 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 ModelClips 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
ModelClips, its suppliers and distributors or third party partners be liable for damages or
losses that are not reasonably foreseeable. The Company, its directors, officers, employees,
agents, subsidiaries, affiliates, licensors, content providers, and service providers will not
be liable to you for any of the following:
- Errors, mistakes, or inaccuracies of content;
- Personal injury or property damage resulting from your access to and use of the Website or its content;
- Content or conduct that is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing, defamatory, libelous, abusive, invasive of privacy, or illegal;
- Unauthorized access to or use of the Company's servers and any personal or financial information stored in them, including unauthorized access or changes to your account, submissions, transmissions, or data;
- Interruption or cessation of transmission to or from the Website;
- Bugs, viruses, Trojan horses, malware, ransomware, or other disabling code that may be transmitted to or through the Website or the Services by any person or that might infect your computer or affect your access to or use of the Website or the Services, your other services, hardware, or software;
- Incompatibility between the Website or the Services and your other services, hardware, or software;
- Delays or failures you might experience in starting, conducting, or completing any transmissions to or transactions with the Website; or
- Loss or damage incurred because of the use of any content posted, emailed, sent, or otherwise made available through the Website.
7. Indemnification and waiver: You agree to indemnify and hold harmless ModelClips, 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. You waive your right to a trial by jury for any dispute arising out of or relating to the Website or the Services. Either party may enforce this waiver up to and including the first day of trial. You waive your right to participate in any purported class action or representative proceeding.
8. Rights for California Residents Only:
8.1. Consumer Rights Information—California Residents Only
This section 8.1 applies only to California residents. In compliance with section 1789 of the
California Civil Code, please note the following:
Nextgen Interactive LLC
2720 NW 35th
Ave. #11
Portland, OR 97210
Users who wish to gain access to the
password-restricted area of the Website must register. The Company does not charge consumers for
registering, but the Company charges for the Services. You may contact the Company at [email protected] to resolve
any disputes or to receive further information about the Website.
8.2. Complaints—California Residents Only: You may contact in writing the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs at 1020 North Street, #501, Sacramento, California 95814, or by telephone at +1 (916) 445-1254.
9. Miscellaneous
9.1. Entire Agreement: This Agreement constitutes the entire agreement between ModelClips
and you concerning the Services and the subject matter hereof.
9.2. Amendment:
ModelClips may amend this Agreement at any time. ModelClips will notify you if the Agreement is
amended. Continued use of the Services after ModelClips amends the Agreement constitutes your
agreement to any such amendment.
9.3. Waiver of Default: No consent or waiver,
express or implied, by ModelClips 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 ModelClips 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 ModelClips of any rights
hereunder.
9.4. 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. ModelClips 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
ModelClips.
9.5. 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.
9.6. Binding
Agreement: This Agreement shall be binding upon the parties hereto and their respective
heirs, personal representatives, successors and permitted assigns.
9.7.
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.
9.8. 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.
9.9. Execution: This Agreement is considered executed when
you agree to it via any of the methods described above.
9.10. Governing Law;
Submission to Jurisdiction: This Agreement shall be governed by and construed in
accordance with the laws of the United States, without regard to its conflict of laws
provisions. ModelClips and you voluntarily submit to the non-exclusive jurisdiction of the
United States 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.
9.11. No Bond Required: You
agree that ModelClips need not post any bond, collateral or security to enforce its rights under
this Agreement.
9.12. 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 ModelClips, ModelClips 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.
9.13. Waiver of Contrary Rights: To the maximum extent
permitted by law, you waive any rights which are contradicted by the provisions of this
Agreement.
9.14. Termination; Survival: ModelClips 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 ModelClips' rights under sections 1, 3, 5, 6, 7, 8 and 9,
and any other provisions which reasonably should be held to survive termination, shall survive
termination of this Agreement.