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Terms of Service
MODELGRADE.COM TERMS OF USE AGREEMENT

Effective Date: March 22, 2013

Welcome to Modelgrade.com. The Modelgrade.com website, content and its associated services (collectively “Website”) is a service that is owned and operated by Modelgrade, LLC (“Owner”). Owner has adopted this Terms of Use Agreement (“Agreement”) to inform you of your rights and duties when using the Website. If you do not agree with the terms and conditions contained within this Agreement, you are expressly prohibited from using the Website and must discontinue your use immediately.

OWNER MAY, AND RESERVES THE RIGHT TO, FROM TIME TO TIME, MODIFY, LIMIT, CHANGE, DISCONTINUE, OR REPLACE THE WEBSITE AND ANY PORTION THEREOF. EVEN AFTER YOU AGREE, IT IS YOUR RESPONSIBILITY TO REVIEW THIS AGREEMENT ON A REGULAR BASIS TO KEEP YOURSELF INFORMED OF ANY MODIFICATIONS. IN THE EVENT OWNER MODIFIES, LIMITS, CHANGES, OR REPLACES THE WEBSITE, YOUR USE OF THE WEBSITE AFTER SAID MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT CONSTITUTES YOUR MANIFESTATION OF ASSENT TO THE MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT.

1. Model Industry Service Provider

The Website is intended for models, aspiring and existing, and those interested in providing products and services to or retention of such models.  Owner provides the Website for use by those in the modeling industry, including models, photographers, stylists, and other agents.  Owner provides registered members (“Members”) the ability to browse models, list and apply for castings, submit and receive feedback via model grades (“Grades”), participate in contests, interact in online forums, submit video and other User Generated Content (as herein defined), shop for products and services and communicate with meet each other online and/or offline.  Members are solely responsible for any and all User Generated Content, including without limitation images and videos, and any and all claims and statements.  

You understand and acknowledge that Owner is not responsible for any User Generated Content offered by a user, including Members, on the Website or any product or service offered by any Member or third party advertiser (“Advertiser”).  Opinions, advice, statements, offers, or other information or content made available on the Website are the responsibility of the respective Members and/or Advertisers and not Owner.  

Owner does not guarantee, warrant, or confirm any Member submitted User Generated Content, the quality of any product or service provided by a Member, or the success of any Member.  Your reliance upon any information on the Website is at your sole and absolute risk.  You should independently verify any information provided by a Member.  You, and you alone, are responsible for any relationship, professional or otherwise, consummated as a result of use of the Website.  Owner shall not be liable to you or any third party for any decision made or action taken by you or others based upon reliance on or use of the information on the Website or interaction with any Member.

2. Warranties and Representations

You warrant and agree that you have the right and legal capacity to enter into this Agreement and to adhere to its terms and conditions. In order to become a Member, you warrant that you are a human individual that is eighteen (18) years of age or older, and that you are not prohibited from assenting to this Agreement by any preexisting agreement.  If you are 17 years of age or younger, you may not participate in the Website without the knowledge of and express consent of your legal guardian(s).  

You warrant, understand, and agree that Owner is providing this Website for use by adult individuals who wish to submit information to the Website and/or participate in online forums and other Website services as well as entities that have a need for a wish to provide services to models. You agree that your use of Website is for your own personal, non-commercial purposes only.  You may not use the Website on behalf of any third party.

Owner is a service provider and makes no representations as to the safety, effectiveness, adequacy, accuracy, availability, prices, ratings, reviews, or legality of the information contained on Website, including as it relates to Members and Advertisers.  Owner relies upon information provided from you and Members in providing Website.  YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS, IN WHATEVER FORM, WITH OTHER MEMBERS.  OWNER HAS NOT CONDUCTED ANY INVESTIGATION, INCLUDING, WITHOUT LIMITATION, ANY CRIMINAL BACKGROUND CHECK, ON ANY MEMBER.  MEMBERS’ STATEMENTS ARE NOT VERIFIED BY OWNER.  YOU UNDERSTAND AND AGREE THAT THE CONTENT ON THIS WEBSITE DOES NOT CONTAIN OR CONSTITUTE REPRESENTATIONS TO BE REASONABLY RELIED UPON.  OWNER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE CONDUCT OF MEMBERS OR THEIR INTERACTIONS, COMMERCIAL OR OTHERWISE, WITH OTHER MEMBERS.  YOU AGREE TO HOLD OWNER HARMLESS FOR ANY CONDUCT OF MEMBERS.

Owner does not warrant or guarantee that compliance with this Agreement will be sufficient to comply with your obligations hereunder, under applicable law or with third party rights.  Given the global nature of the Internet, you agree to comply with all laws and rules where you reside or where you use Website.  Website is operated in the United States and Owner makes no representation that its Website or services are appropriate, lawful, or available for use in other locations.  Owner does not offer Website where prohibited by law.

3. Membership Registration

Members must register in order to gain access to the Website.  Member registration is free.  However, in order to become a Member, Members must register as a certain member type, complete all required profile information and agree to the terms of this Agreement, including the Privacy Policy and Copyright Policy, and complete the email verification process.  Members are provided a webpage (“Member Page”).

Members may add contacts to their profile and indicate which other Members they like to work with (“LW”) and work with (“WW”).  Members must first approve a request by another Member to include their Member information as a contact.  Upon approval a thumbnail of a Member will displayed on another Member Page.

Member profile contains information provided by you, and Owner does not endorse you or discriminate based upon any information provided by you or made available for population of your profile.  Member profile information will be used consistent with the Privacy Policy.

You may only use your Member account and you are expressly prohibited from providing additional parties with access your Member account or creating multiple Member accounts.  You agree that, in registering a Member account, you will provide Owner with accurate, complete, relevant, and current information, and maintain the same so long as you are a member. You are solely responsible for maintaining the security and confidentiality of your username and password and for any access to your Member account, whether authorized or unauthorized. In the event your Member account is accessed without your authorization, you agree to immediately provide notice to Owner. By creating a Member account, you agree that Owner, and Owner’s designees and agents, may contact you by any available means, including, but not limited to, by email.

Owner may require payment from Member in order for Member to access certain features of functionality of the Website.  Failure to pay will result in termination of your access to Website.  

4. Model Member Grading and Industry Grading

Members may vote on a model member profile.  Model Members understand and agree that a Grade will be assigned to their profile, and displayed publicly via on the model’s Member Page.  Model Members will receive a Grade depending upon the number of votes received by other Members.  A Grade corresponds to a type of model assigned by other Members.  

In addition, Model Members may purchase the ability to have their profile, including photographs, graded or reviewed by a third party, which may include an individual with experience in the modeling industry.

Owner is not responsible for any Grade provided to a model.  Owner may, however, post a review of the industry Grade on the Website.

5. Casting

Owner provides Members with the ability to post casting opportunities.  Members acknowledge and agree that Owner may, within its sole and absolute discretion, may designate feature castings and prioritize display of the same.  Members may apply for castings.  Owner is not responsible for any casting, including, without limitation, any terms related to a casting.  Members are entirely responsible for the posting of casting and/or fulfillment of any casting.

6. Memo

Owner provides Members with the ability to post short messages (“Memo”) for display on the Website.  Members acknowledge and agree that Owner may, within its sole and absolute discretion, designate top Memos and display it on the Website and/or send it to another Member and/or display on a Member Page. Owner is not responsible for any Memo.

7. Website Shop

Owner may offer products and services for purchase by Members and other users.  All payments are to be made via PayPal, with a valid credit card. You agree to pay all fees and charges on time, and Owner may terminate or disable your access to the Website or your Member account if you fail to pay any amount owing to Owner when due. You agree that you will pay all costs of collection, including legal fees, incurred by Owner. All registration fees are non-refundable. You agree that you will not initiate any chargebacks to Owner unless otherwise authorized by Owner in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against Owner. You agree to pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with your use of the Website. All costs and fees are quoted and payable in United States Dollars.

In the event you dispute the amount or validity of any payments made under this Agreement, you must notify Owner, in writing, within ten (10) days of any such dispute. You understand that your failure to notify Owner of any dispute within ten (10) days will constitute your express waiver of any claims related to the disputed payment.

8.  Participation in Promotions

Owner may offer contests or other promotions to its users.  In the event Owner offers users the ability to participate in any such promotion, such as a contest or sweepstakes, you agree that the rules and terms of such contest or sweepstakes will be made available to you under separate document on the Website and are expressly incorporated into this Agreement.  You further acknowledge, understand, and agree that Owner may utilize one or more third party service providers for its promotional efforts, and your use of the same constitutes your acceptance of such third party service provider’s terms and conditions and privacy policy.

9.  Advertisers

Owner offers the ability to participate as an Advertiser on Website.  Advertisers may be required to pay for placement of an advertisement, which includes display of Advertiser’s company name and/or logo. Owner shall display advertisements of paid Advertisers pursuant to these terms of this Agreement and any additional written terms between Owner and Advertiser.

By participating as an Advertiser, Advertiser hereby grants Owner a non-exclusive, irrevocable, royalty free, worldwide, and license to use your information submitted, including, without limitation, name, trademark, service mark, or other indicator of source, for the customary and intended purposes of the Website and advertisement. By participating as an Advertiser, you further agree to waive all rights of publicity or privacy with respect to the information submitted.

10. Prohibited Uses of Website

You agree that you will not use the Website to violate any law, statute, ordinance, regulation, or treaty, to violate the rights of third parties, or for a use outside of the customary and intended purposes of the Website.

Specifically, you are prohibited from, without limitation:

Transmitting unsolicited commercial email messages, or spam, through the Website or to users of the Website;
Suggesting an affiliation with or endorsement by Owner;
Providing material that exploits people under the age of 18 in a sexual or violent way or otherwise attempting to solicit information from anyone under the age of 18;
Promoting an illegal or unauthorized copy of another person’s copyright protected work, in whatever form, including providing pirated computer programs or software or links to them, or providing information to circumvent copyright protected notices or devices;
Imposing a disproportionate load on the Website or its server infrastructure or otherwise attempting to interfere with the operation of the Website;
Circumventing Owner’s technological or security protection mechanisms;
Using a script, robot, spider, scraper, or other automated technology to access the Website;
Attempting to gain access to the private data or personal information of a user of the Website or a third party;
Posting or transmitting content intended to collect personal or personally identifiable information from users of the Website or third parties;
Harassing and/or stalking a third party through your use of the Website;
Impersonating another or creating multiple alias accounts;
Posting or transmitting content that threatens or encourages bodily harm or the destruction of property;
Posting or transmitting content that infringes upon the intellectual property rights or other personal or proprietary rights of other users of the Website or third parties;
Posting or transmitting content that is inaccurate, false, misleading, offensive, derogatory, obscene, profane, sexually oriented, racially offensive, or otherwise harmful;
Posting or transmitting sexually explicit images, photographs, videos, or other content;
Posting or transmitting content that promotes or recruits escort or related services, underage modeling, or otherwise sexually related services;
Posting or transmitting content that incites any illegal activity, including, without limitation, prostitution services;
Posting or transmitting content that constitutes fraud, an unwanted commercial solicitation, a phishing scam, a pyramid scheme, or a chain letter;
Posting or transmitting content that violates any term or condition of this Agreement; or
Posting or transmitting content, or using the Website in a manner, that violates any law, statute, regulation, or ordinance, or treaty, whether local, state, provincial, national, or international.

Your violation of any term or condition of this section or any term of this Agreement may result in the immediate termination of your Member account and the disabling of your access to the Website.

Owner reserves the right to remove any User Generated Content it deems to be in violation of the terms of this Agreement.

11.  Work Safe Mode

Owner also provides users, including Members, the ability to enable Work Safe Mode.  When Work Safe Mode is enable (i.e. “on”), any photographs that Members designated as being intended for individuals 18 years of age or older will not be displayed.  When Work Safe Mode is disabled (i.e. “off”), all photographs will be displayed.  

12.  Ownership of Website Content

You understand and agree that Owner is the owner, or licensee, of all rights in and to the Website and its associated content, including but not limited to all intellectual property and any other property or proprietary rights. The Website is protected by all applicable laws, intellectual property or otherwise, and you are expressly prohibited from using the Website for any purposes not explicitly stated in this Agreement. Specifically, and except where otherwise allowed under this Agreement, you are prohibited from framing, scraping, aggregating, hacking, reverse engineering, crawling, reproducing, preparing derivative works of, distributing, performing publicly, or displaying publicly the Website, whether in whole or in part, without the prior written consent of Owner. The foregoing prohibition on crawling and aggregation will not apply to search engines or non-commercial and publicly available archives that appropriately comply with the robots.txt file.

Owner hereby grants you a limited, non-exclusive, non-sublicensable, non-assignable, and revocable license to use the Website for its customary and intended purposes. Use of the Website for a use outside of its customary and intended purposes or in violation of the terms of this Agreement will result in the termination of this license. This license is revocable at any time, and any rights not expressly granted herein are reserved to Owner.

Owner is the owner of all trademark, trade name, and/or service mark rights, whether registered or under common law, of all its marks, including, without limitation, MODELGRADE.

13. User Generated Content

Owner may provide you with the ability to submit user generated content to or through the Website, which may include, but is not limited to, model Member and other Member profiles, Castings, Memos, Grades, posts in an online forum, and other content that may contain information, text, and comments; personal information, including, name, birth date, and location; photographs, videos, images and designs; and other information (collectively “User Generated Content”).  You agree that you are the owner of, or have rights to, any and all User Generated Content submitted.  You further warrant that any User Generated Content that you submit to the Website will is truthful and will not violate or infringe upon the rights of third parties, including, but not limited to, trademark rights, copyright rights, patent rights, rights of publicity and privacy, and any other intellectual property right, personal right, or proprietary or violate any applicable law, statute, ordinance, treaty, or regulation, whether local, state, provincial, national, or international.

You acknowledge and agree that when submitting User Generated Content, namely photographs, it is your responsibility to designate whether such photographs are intended for individuals 18 years of age or older.  Owner is not responsible for confirming such designation.  

By submitting information to the Website, you grant Owner a non-exclusive, irrevocable, royalty free, worldwide, and perpetual license to use your information for the customary and intended purposes of the Website and any advertising thereof. These purposes may include, but are not limited to, use in a related product or service (including, without limitation, a magazine), providing you or third parties with the Website or its associated services and archiving or making backups of the Website.  By submitting information to the Website, you further agree to waive all rights of publicity or privacy with respect to the information submitted.  You agree to execute any and all documents requested by Owner and shall cooperate in any endeavor Owner makes to obtain the necessary rights to display your information.

This provision shall survive any termination of this Agreement for the maximum period permitted under applicable law.  

14. Third Party Links and Advertisers Promotions

You understand that the Website may contain links to third party websites, applications, or services that Owner does not own or control. You agree that Owner will not be held responsible or liable for the content of third party websites, applications, or services as well as Advertisers’ advertisements and that Owner’s inclusion of those websites, applications, or services as well as Advertisers’ advertisements within its Website does not constitute Owner’s endorsement of, recommendation of, or affiliation with any of those websites, applications, or services and/or Advertisers.

15. Section 230 of Communications Decency Act

You acknowledge and agree that Owner is an interactive computer service provider under Section 230 of the Communications Decency Act. Though Owner may edit, remove, or control the content displayed through the Website, you agree that Owner will not be considered an information content provider and will not be held liable for the republication of defamatory or tortious content created by third parties, whether through the Website or otherwise. Owner may, within its sole and absolute discretion, remove any User Generated Content, for any reason and for no reason at all.

16. Privacy Policy

Owner hereby incorporates its Privacy Policy into this Agreement.

17. Copyright Policy

Owner hereby incorporates its Copyright Policy into this Agreement.

All rights not expressly granted herein are reserved to Owner.

18. Disclaimer of Warranties

OWNER DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM OR LIAIBLITY ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE OR ANY GOODS OR SERVICES LINKED TO OR THROUGH THE WEBSITE. OWNER PROVIDES THE WEBSITE ON AN AS-IS BASIS AND WITH NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, THIS EXCLUSION MAY NOT APPLY.

OWNER WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CONTENT POSTED ON THE WEBSITE, ANY THIRD PARTY LINKS POSTED ON THE WEBSITE, OR ANY CONTENT TRANSMITTED THROUGH THE WEBSITE. OWNER DOES NOT ASSUME RESPONSIBILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DESTRUCTION OF IDENTITY, UNAUTHORIZED ACCESS, OR ALTERATION OF OR TO THE WEBSITE. OWNER RESERVES THE RIGHT TO DISCONTINUE THE WEBSITE AT ANY TIME.

OWNER IS NOT RESPONSIBLE FOR THE REPRESENTATION OR CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY MEMBER, USER OR ADVERTISER OF WEBSITE.

19. Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT OWNER WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY FOR DAMAGES, CLAIMS, INJURIES, JUDGMENTS, OR LIABILITIES ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF THE WEBSITE OR GOODS OR SERVICES LINKED TO THROUGH THE WEBSITE, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES. YOU UNDERSTAND AND AGREE THAT THE MAXIMUM AMOUNT THAT OWNER CAN BE HELD LIABLE TO YOU UNDER ANY CIRCUMSTANCES IS THE AMOUNT THAT YOU PAID FOR ANY SERVICE PROVIDED THROUGH THE WEBSITE. IF NO AMOUNT IS PAID BY YOU TO OWNER FOR THE WEBSITE AND/OR MEMBER ACCOUNT, YOU AGREE THAT YOU WILL BE LIMITED TO INJUNCTIVE RELIEF ONLY UNLESS OTHERWISE PERMITTED BY LAW.

20. Indemnification

You agree to hold harmless, indemnify, and defend Owner, its officers, employees, agents, successors, and assigns, from any and all claims, demands, losses, damages, rights, and actions of any kind, including without limitation property damage, infringement, personal injury, and death, that either directly or indirectly arises out of or is related to your use of the Website, your violation of any term or condition of this Agreement, your violation of any applicable law, statute, ordinance, regulation, or treaty, whether local, state, national, or international, or your violation of the rights of a third party. Your obligation to defend Owner under the terms of this Agreement will not provide you with the right to control Owner’s defense, and Owner reserves the right to control its defense regardless of your contractual requirement to defend Owner.

21. Assignment

You hereby understand and agree that you are prohibited from assigning your rights and obligations under this Agreement. Owner may assign its rights and obligations under this Agreement at any time, including but not limited to in a sale of or other transaction involving the Website.  In the event of an assignment by Owner, you understand and agree that Owner may share any information collected, as set forth in the Privacy Policy.

22. Resolution of Disputes

This Agreement will be interpreted under and governed by the laws of the State of Massachusetts without giving effect to any conflicts of laws principles. You agree that any claim or dispute that you may have against Owner will be exclusively resolved through arbitration.

YOU AND OWNER AGREE THAT ARBITRATION WILL BE THE EXCLUSIVE FORUM AND REMEDY AT LAW FOR ANY DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE WEBSITE, INCLUDING ANY DISPUTES CONCERNING THE VALIDITY, INTERPRETATION, VIOLATION, BREACH, OR TERMINATION OF THIS AGREEMENT. ARBITRATION UNDER THIS AGREEMENT WILL BE HELD IN GEORGIA AND IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATION PROCEEDING WILL BE DECIDED BY A SINGLE ARBITRATOR AND THE ARBITRATOR WILL DECIDE THE ARBITRATION PROCEEDING BY APPLYING THE LAWS AND LEGAL PRINCIPLES OF THE STATE OF GEORGIA AND THE FEDERAL LAWS OF THE UNITED STATES. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES. YOU AND OWNER AGREE THAT BOTH PARTIES WILL BE REQUIRED TO BE PRESENT WITHIN THE STATE OF GEORGIA IN ORDER TO PERFORM THEIR OBLIGATIONS UNDER THIS AGREEMENT. YOU AND OWNER AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH ARBITRATOR OR ARBITRATION PROCEEDING.

23. COPPA Compliance

The Website is not directed to persons under the age of eighteen (18) and Owner will not knowingly collect personally identifiable information from children under the age of eighteen (18). If Owner inadvertently collects personally identifiable information, Owner will delete the personally identifiable information in accordance with its security protocols, upon notice.

24. Miscellaneous Provisions

A finding that any term or provision of this Agreement is invalid or unenforceable will not affect the validity or enforceability of this Agreement. Any term or provision of this Agreement that is found to be invalid or unenforceable will be reformed to the extent necessary to make it valid and enforceable.

You understand and agree that no term or provision of this Agreement will be deemed to have been waived and no breach will be deemed to have been consented to unless said waiver or consent is in writing and signed by the party to be charged.

This Agreement, the Privacy Policy, and the Copyright Policy incorporated by reference constitute the entire agreement between you and Owner with respect to the Website and your relationship with Owner. You understand and agree that there are no further understandings, agreements, or representations with respect to the Website that are not specified in this Agreement. You understand and agree that any additional provisions that may appear in any communication from you will not bind Owner.

OWNER AND YOU BOTH AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE WEBSITE MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. FAILURE TO ASSERT SAID CAUSE OF ACTION WITHIN ONE YEAR WILL PERMANENTLY BAR ANY AND ALL RELIEF.

YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST OWNER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONTEARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.

25.  Notice

Any notice required under this Agreement must be made in writing to Modelgrade LLC, 300 Colonial Center Parkway, Suite 100N, Roswell, GA, 30076 with a copy via email to:  dmca@modelgrade.com.  

This Agreement is enforced by the  HYPERLINK "http://www.traverselegal.com/"Internet lawyers of Traverse Legal, PLC