Endless Ladies LIQUIDATED DAMAGES
Last Updated: January 31, 2013
In addition, for purposes of this schedule of liquidated damages, “Item of Content” means each and every instance of content of any type posted to, stored on or transmitted via EndlessLadies by any user (or any other third party in any manner). For example, each single post to EndlessLadies (including but not limited to any ad, comment, flag or message posted to EndlessLadies), each single data file stored on EndlessLadies (including but not limited to any account information, text, code, images, video or binary file), and each single communication transmitted via EndlessLadies (including but not limited to any email or response to an email) is a single “Item of Content.” Each “Item of Content” shall be considered and treated as an individual, discrete “Item of Content” even if it contains the same or substantially similar content as one or more other Items of Content.
For purposes of this schedule of liquidated damages, “Account” means each and every EndlessLadies account of any type applied for, requested or created by any means (including but not limited to telephone-verified accounts, also known as phone verified accounts or “PVAs”).
For purposes of this schedule of liquidated damages, “Instance of Unauthorized Conduct” or “Instance” means each individual time ELC’s servers are accessed in connection with or in facilitation of a violation of the TOU. With respect to the Instances of Unauthorized Conduct enumerated in paragraph 6 below, each day that ELC’s servers are accessed to facilitate one or more of the violations enumerated therein shall constitute one Instance of Unauthorized Conduct.
For purposes of this schedule of liquidated damages, “Attempt” shall be defined pursuant to California law.
TOU violations harm the functionality, integrity, and reputation of EndlessLadies; interfere with and detract from users’ and customers’ beneficial use and enjoyment of EndlessLadies; and are detrimental to ELC as a business. Pursuant to §§ 11 and 12 of the TOU, you acknowledge and agree that ELC incurs actual damages as a result of the TOU violations detailed below. You further acknowledge and agree that actual damages caused by such violations are extremely difficult, impossible or impractical to determine or quantify. Consequently, you agree it is fair and reasonable for ELC to obtain injunctive relief to prohibit future violations of these TOU and recover liquidated damages for past violations of these TOU, and you acknowledge that the amounts set forth below reflect reasonable estimates of ELC’s actual damages from each such violation and that such estimates are reasonably related to the actual damages caused to ELC by each such violation.
For each TOU violation below, you therefore agree to pay liquidated damages to ELC in the amount specified. You further acknowledge and agree that the imposition of liquidated damages for each such TOU violation is independent and distinct, and that the assessment of total liquidated damages for multiple TOU violations is cumulative.
1. $25 Per Item of Content
For the following, you agree to pay $25 per Item of Content:
(a) a flag of content without a personal, good-faith belief that the content violates the TOU; (b) a flag of content on behalf of someone else; (c) a flag that you permit, enable, induce or encourage someone else to make on your behalf; (d) more than one flag of a specific Item of Content; (e) content posted to a geographic area offered on EndlessLadies for which that content is not relevant; (f) content that is the same or substantially similar to content posted to or communicated via EndlessLadies for more than one geographic area; (g) content posted in a EndlessLadies category to which it is not directly relevant (as explained in the TOU ¶ 4.a. (second paragraph)); (h) content that is the same or substantially similar to content posted in another EndlessLadies category; (i) content that is posted in more than the single user sub-category most accurate for that user where the relevant EndlessLadies category provides specific subcategories for posts by particular types of users (as explained in the TOU ¶ 4.a. (fourth paragraph)); (j) content the same or substantially similar to other content posted more than once within 48 hours; (k) content you post to EndlessLadies on behalf of another; or (l) content posted to EndlessLadies by a third party on your behalf (i.e., content that you permit, enable, induce or encourage any third party to post for you).
As explained in the definition of “Item of Content” above, for purposes of calculating liquidated damages, each flag described in clauses (a) through (c) of this section shall constitute an individual Item of Content. See, among others, TOU ¶¶ 4.a. and 4.c.
2. $50 Per Item of Content
You agree to pay $50 per Item of Content posted or stored on, or transmitted via EndlessLadies either by you or on your behalf:
(a) using any automated means to perform any step of any process for submitting content (in whole or in part); (b) by any means that circumvent any technological measure implemented by ELC to restrict the manner in which content may be submitted on EndlessLadies or to regulate the manner in which content (including but not limited to email) may be transmitted to other users; or (c) using Accounts that are created or used in violation of TOU ¶4.b.
Liquidated damages under this ¶ 2 are in addition to Liquidated Damages that may be applicable to the Item of Content pursuant to other sections of this schedule and are agreed to be a reasonable estimate of ELC’s actual damages for the Items of Content posted using the means described in this ¶ 2 in addition to the liquidated damages incurred by ELC set forth elsewhere in this schedule. See, among others, TOU ¶ 4 b.
3. $100 Per Item of Content
For the following, you agree to pay $100 per Item of Content:
(a) content that offers, promotes, advertises or provides links to unsolicited products or services (except that the content described in Section 5(g) of this schedule, shall be subject to liquidated damages as provided in Section 5(g)); (b) content that violates guidelines for particular categories or services on EndlessLadies; or (c) content (including but not limited to ads, emails and other communications with EndlessLadies users) for purposes of affiliate marketing or in connection with any affiliate marketing system, scheme or program in any manner and under any circumstance. See, among others, TOU ¶¶ 4.a.
4. $100 Per Account/Instance
For the following, you agree to pay $100 per Account/Instance of Unauthorized Conduct:
(a) if you create, maintain or use at any time more than one Account (including without limitation PVAs) to post content; (b) if you create one or more Accounts for or on behalf of another; (c) if you permit, enable, induce or encourage someone else to create one or more Accounts on your behalf; (d) if you use other users’ Accounts (with or without their knowledge or consent) (including but not limited to your use of any Account you purchase or otherwise do not personally create); (e) for any Account you purchase, offer, market, sell, or distribute; (f) for any Account you create for another; (g) for any Account you create by any automated means; (h) for any Account verified using a telephone number that is not your own personal telephone number; (i) for any telephone number you purchase, offer, market, make available, sell or distribute for the purpose of phone verification; (j) if you use any Accounts created in circumvention of any technological restriction or security measure in the Account creation process; (k)if you create any Accounts in circumvention of any technological restriction or security measure in the Account creation process; (l) for any product, software, or tool (including but not limited to CAPTCHA credits) you acquire, purchase, offer, market, sell, or distribute, that facilitates circumvention of any technological measure implemented by ELC to restrict the manner in which content may be posted on EndlessLadies or to regulate the manner in which content may be transmitted to other users; (m) if you collect EndlessLadies users’ personal information (including but not limited to email addresses, IP addresses and telephone numbers) or (n) for any activities (including but not limited to posting voluminous content) that are inconsistent with use of EndlessLadies in compliance with the TOU or that may impair or interfere with the functionality, performance or quality of all or any part of EndlessLadies in any manner.
See, among others, TOU ¶¶ 4.a. and 4.b.
5. $1000 Per Item of Content
For the following, you agree to pay $1000 per Item of Content:
(a) illegal content; (b) content in facilitation of the creation, advertising, distribution, provision or receipt of illegal goods or services; (c) offensive content (including, without limitation, defamatory, threatening, or hateful content); (d) content that discloses another’s personal, confidential or proprietary information; (e) false or fraudulent content (including but not limited to false, fraudulent or misleading responses to user ads transmitted via EndlessLadies); (f) malicious content (including, without limitation, malware or spyware); (g) content that offers, promotes, advertises, provides links to or solicits posting or auto-posting products or services, account creation or auto-creation products or services, flagging or auto-flagging products or services, bulk telephone numbers, or any other product or service that if utilized with respect to EndlessLadies would violate these TOU or ELC’s other legal rights.
See, among others, TOU ¶ 3.a.
6. $25,000 Per Instance of Unauthorized Conduct
Technology can be misused to facilitate harm to EndlessLadies, its users, and/or ELC on a massive scale. For the following, you agree to pay $25,000 per Instance of Unauthorized Conduct:
(a) copying, aggregation, display, distribution or derivative use of EndlessLadies or any content posted on EndlessLadies (including, but not limited to, by means of spiders, robots, crawlers, scrapers, framing, iframes, or RSS feeds); (b) access to or use of EndlessLadies to design, develop, test, update, operate, modify, maintain, support, market, advertise, distribute, or otherwise make available any program, application or service (including, without limitation, any device, technology, product, computer program, mobile device application, website, and mechanical or personal service) that enables or provides access to, use of, operation of, or interoperation with EndlessLadies (including, without limitation, to access content, post content, respond to content, transmit content, create accounts, use accounts, circumvent security measures, or flag content); or (c) decompiling, disassembling or reverse engineering all or any part of EndlessLadies in order to identify, acquire, copy, or emulate any source code or object code. See, among others, TOU 5.
7. Written License
Any conduct or content that is permitted pursuant to a written license agreement with ELC shall not be deemed in violation of the TOU as long as the conduct or content is specifically authorized pursuant to the terms of the license agreement.