Last Updated December, 2015
This Agreement is dated ___________, which is located at "."
This GK.com website is part of a network of affiliated dating websites ("Affiliates") that cater to all gay men (the "SM.com Network"). Although the GK.com Member database is owned and maintained by SM.com, most of the websites within the SM.com Network are not owned or maintained by SM.com. You can see a list of current Affiliate websites via this link. Affiliate websites are landing pages which provide a portal to the GK.com website, which potentially increases the number of individuals with whom you may have a match. Affiliate websites within the SM.com Network have different domain names, but all link to the GK.com website.
If you create or maintain a profile on the GK.com website, and you share your profile or username with other GK.com Members, you are agreeing that your profile may be displayed to such Members. Anyone who is a GK.com Member, and who accesses the GK.com website through an Affiliate landing page, can view your profile on the GK.com website, unless you set your profile to invisible or restrict access to portions of your profile. Non-members cannot access your profile, either on the GK.com website or from an Affiliate landing page.
1. TERMS & CONDITIONS
1.2 You must be at least 18 years of age to register as a Member of GK.com or to use the GK.com website. Membership in the Service is void where prohibited.
1.3 If you wish to obtain a copy of this Agreement in non-electronic form, please contact GK.com at the address listed on the Contact page.
2. MEMBER'S REGISTRATION INFORMATION
2.1 As a condition for using the Service, you agree to:
2.2 If any information provided by you is found to be untrue, inaccurate, non-current or incomplete, SM.com has the right to terminate your account and refuse any and all current or future use of the Service.
3. PROFILE SHARING AND DISTRIBUTION
3.1 Affiliate websites are merely landing pages that direct or link persons to the GK.com website. A person cannot view your profile or private photos from an Affiliate website. Whether a person comes to the GK.com website from an Affiliate website or is already on the GK.com website, that person would have to become a GK.com Member to view or access your profile or private photos stored in the GK.com database.
3.2 SM.com may share information, including your personal information, with third parties (non-Members) that perform certain services on behalf of SM.com and GK.com including analytics, fraud prevention, customer service, member screenings, payment processing, and support of the GK.com website functionality.
4. CONTENT POSTED BY YOU
4.3 Limited License. You grant SM.com a limited, worldwide, royalty-free, non-exclusive, non-transferrable license to use any content you upload through the GK.com website, and only in connection with SM.com providing you Services and with regard to any legal requirements or legal issues which may arise regarding your use of the GK.com website. This license shall continue after you discontinue your membership with GK.com. If you want to terminate this license at any time, please email support@GKiss.com. However, SM.com reserves the right to terminate your membership if you terminate this limited license. Please note that, even after termination of any license granted hereunder, some content may continue to exist because of cached internet pages beyond the control of SM.com.
5. MEMBER INFORMATION & EMAIL
5.1 SM.com considers non-public Member account information, including but not limited to information you provide during the registration process and e-mail communications transmitted by you through the Service, to be your private information. SM.com will not disclose such information to any third parties without your consent. However, you acknowledge and agree that SM.com may disclose your profile information if SM.com determines that disclosure is reasonably necessary:
6. MODIFICATIONS TO SERVICE
6.1 SM.com reserves the right to discontinue, temporarily or permanently, the Service with or without notice to you. In the event that SM.com discontinues providing the Service to you for reasons other than your breach of this Agreement, SM.com will refund any unused membership fees.
6.2 You agree that SM.com shall not be liable to you or to any third party for any discontinuation of the Service other than as stated in section 6.1 above, and that SM.com will not be liable to you or to any third party for any sum more than the membership fee for which you paid. If any third party makes a claim against SM.com based upon services provided to you, you agree to hold SM.com harmless and to indemnify SM.com for any and all losses, expenses or liability except for losses, expenses or liability which were solely caused by SM.com's willful misconduct.
7. MEMBER CONDUCT
7.2 You agree to abide by all applicable local, state, national, and international laws and regulations in your use of the Service, and agree not to attempt to gain unauthorized access to other computer systems or networks connected to the SM.com Network or Service. You also agree not to interfere with the use and enjoyment of the Service by other Members.
7.3 You agree not to transmit on the Service any obscene, lewd, lascivious, filthy, excessively violent, harassing, unlawful, defamatory, harassing, libelous, privacy invading, sexually and/or racially offensive, abusive, threatening, harmful, vulgar, obscene, or otherwise objectionable offensive, vulgar, racist, harmful, illegal, or otherwise objectionable, offensive, vulgar, racist, harmful, or unfit for use on the GK.com website, regardless of whether such material is constitutionally protected.
7.4 You agree not to transmit any material that violates the rights of another, including but not limited to the intellectual property rights of another.
7.5 You agree not to transmit "junk mail," "spam," "chain letters," or unsolicited mass distribution of email, or to use the Service for any commercial purpose.
7.6 You agree not to engage in advertising or solicitation of other GK.com Members, including but not limited to advertising to buy or sell any products or services, solicitations of any kind, or use of the GK.com website for any commercial purpose. You agree not to send any chain letters, junk email, or product solicitations through the Service. Use of the Service for advertising is strictly forbidden unless expressly approved by SM.com.
8. USE OF SITE
8.1 You agree not to interfere or attempt to interfere with the operation of the GK.com website, the Service and/or software used to operate the GK.com website and the Service (the "Software") in any way through any means or device including but not limited to uploading computer viruses, hacking, spamming and/or time bombs, or by means prohibited by any provisions of these terms and conditions.
8.2 You and/or any Member may not at any time attempt to use or act upon any software, robot, bot, spider and/or any other means of entering the GK.com website and/or the Service. You may not post any type of service or URL for any reason.
8.3 You agree not to include in your public profile any telephone numbers, street addresses, last names, URLs, email addresses, anatomical or sexual references or sexually suggestive language. You also agree not to post any photos containing nudity or otherwise vulgar or offensive material in any areas on the GK.com website or the Service, which are accessible to the public or to GK.com's Members.
8.4 SM.com reserves the right, but has no obligation, to reject or remove any content, profile or photo that does not comply with the letter or spirit of this Agreement.
8.5 Your membership in the Service is solely for your personal use. You may not authorize others to use your membership and you may not assign or otherwise transfer your membership or account to any other person or entity. You are responsible for protecting the privacy of your username and password and logging out of the GK.com website if your computer is accessible to others to prevent unauthorized access to the GK.com website and to your profile.
9. NO RESALE OR TRANSFER OF THE SERVICE
9.1 You agree not to sell, convey or transfer any rights, use of, or access to the Service.
10. PAYMENT TERMS
10.1 For purposes of your use of the Service, you agree to provide SM.com with true, accurate and complete information as required by the subscription process ("Subscription Data"), including your legal name, address, phone number, email address and other billing information (e.g., credit card number and expiration date), and to allow SM.com to share your Subscription Data with third parties for the sole purpose of verifying the information you provide and billing your credit card or otherwise charging your account.
10.2 Payment for the Service may be made by credit card, PayPal, or other means authorized by SM.com.
10.3 SM.com's monthly service charges are subject to change with notice posted on the GK.com website which you must accept or reject by checking the applicable box, which will be available after the changes are announced on the GK.com website. You agree that you are solely responsible for checking the GK.com website from time to time to determine if the monthly service charges have changed. If you reject or do not accept those changes before the increased charges are due, GK.com will terminate your membership.
10.4 You agree promptly to inform SM.com of any and all apparent breaches of security, such as loss, theft, or unauthorized disclosure or use of your username or password. Until a Member notifies SM.com by e-mail of a breach in security, the Member will remain liable for any unauthorized use of the Service.
10.5 If you initiate a chargeback or otherwise reverse a membership payment, SM.com may in its sole discretion terminate your membership immediately. SM.com also reserves the right to dispute any chargebacks and reversals.
11.2 You acknowledge and agree that any suspected fraudulent, abusive or illegal activity (see section 7 above) may be grounds for termination of your membership and SM.com may refer such grounds to law enforcement authorities.
11.4 If you relocate your primary residence and can no longer access the Service, you may elect to terminate the Service by sending an email to Support@GKiss.com.
11.5 Your membership under this Agreement shall be available for an unspecified term on an at-will basis. If SM.com terminates your membership, you will not be entitled to any refund of unused subscription fees, except as provided in Section 6.1 above. Even after your membership has terminated, this Agreement will remain in effect. All terms that by their nature may survive termination of this Agreement shall be deemed to survive such termination.
12. DEALINGS WITH ADVERTISERS, VENDORS & OTHERS
12.1 You acknowledge and agree that any and all links from GK.com and/or links from any and all other websites owned and/or operated by SM.com do not constitute an endorsement from SM.com or any of its partners, Affiliates, and/or other sites or services of those links. SM.com provides these links solely for information, and each Member is responsible to evaluate the content and usefulness of any information from these links.
12.2 Because SM.com may have no control over other websites and information, you acknowledge and agree that SM.com is not responsible for the availability or content of such other websites or resources.
12.3 You agree not to hold SM.com liable for any loss or damage of any sort incurred as the result of the presence, availability or non-availability of the advertisers, Affiliates, vendors or others available on or through the Service, or as the result of your dealings with others, including but not limited to attendance at events advertised or purchase or use of goods or services offered on or through the GK.com website.
12.4 You are solely responsible for your interaction with other Members of the GK.com website and the SM.com Network whether online or offline. SM.com is not responsible or liable for the conduct of any user or Member, and, if you become a Member by checking the box below, you agree that any claims you may assert against SM.com will be resolved pursuant to the terms of this Agreement and that SM.com's liability for any losses or other damages you claim will be limited to refunding your membership fees and no more. SM.com reserves the right, but has no obligation to monitor or become involved in disputes between you and other users or Members. Please exercise common sense and prudent judgment in your interactions with others in all of your online and offline activities.
13. PROPRIETARY RIGHTS
13.1 You acknowledge and agree that content, including but not limited to text, software, music, sound, photographs, graphics, video, or other material contained in sponsor advertisements or information presented to you by SM.com, its partners or advertisers, is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. You acknowledge and agree that you are permitted to download and print this material and information for your personal, non-commercial use or as expressly authorized by SM.com, its Affiliates or advertisers, and you may not copy, reproduce, transmit, distribute, or create derivative works of such content or information without express written authorization. You agree to abide by any and all restrictions, rights, and/or copyright notices displayed on the GK.com website.
13.2 To the fullest extent permitted by law and this Agreement, you acknowledge and agree that any material you send to SM.com or GK.com, by email or otherwise, including any suggestions and comments that you post on SM.com, the GK.com website, the Service and/or in any areas on the Service that are accessible to the public or GK.com's membership, will be treated as non- confidential and non-proprietary and that SM.com may use such material, in whole or in part, in any medium for any purpose, including but not limited to the reproduction, disclosure, transmission, publication, broadcast and posting of such material in advertising and promotions. You further agree that SM.com will not owe you a commission, fee, or any sum in return for its use of said non- confidential and non-proprietary information.
14. WARRANTIES & REPRESENTATIONS
By posting or transmitting any file, data, photograph, or other content or communication to SM.com, GK.com, or on the Service, you represent and warrant as follows:
14.1 That the public posting and use of the file, message, data, photograph, or other content or communication by SM.com and any Members of GK.com will not infringe or violate the rights of any other party, including but not limited to any intellectual property rights.
14.2 That, prior to transmitting to SM.com or GK.com or posting or reproducing on the Service any file, message, data, photograph, or other content or communication in which another party has any proprietary interest, including but not limited to any intellectual property rights, you have obtained all required and necessary consent from that party or parties.
14.3 That you are using the Service in accordance with any and all applicable laws and regulations and this Agreement, including but not limited to your use in posting, transmitting or reproducing any file, message, data, photograph or other content or communication.
14.4 That you have never been convicted of a felony.
14.5 That you are not required to register as a sex offender with any government agency.
15. DISCLAIMER OF WARRANTIES
15.1 The Service and the materials available on or through the Service and the SM.com Network are provided "as is," "as available," and without warranties or conditions of any kind, either express or implied.
15.2 To the fullest extent permissible at law, SM.com disclaims all warranties and conditions, express or implied, including, but not limited to, implied warranties and conditions of merchantability, merchant quality, correspondence to description and fitness for a particular purpose.
15.3 SM.com does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the GK.com website or the servers that make it available are free of viruses or other harmful components. SM.com does not represent or warrant that the materials or the results of the use of the materials available through the Service or from third parties will be correct, accurate, timely, reliable or error free.
15.4 SM.com does not conduct criminal background checks on its users or Members. SM.com reserves the right, but does not assume the duty, to conduct any background checks of its Members or users at any time using any available public records.
15.5 SM.com is not responsible for any of the information provided to GK.com or SM.com during the age, education, photo, occupation, income or any other verification process. In issuing any certification as to a Member's "verified" or "certified" status, you agree and accept that SM.com has not done any due diligence on the materials or information provided, but has simply relied on the information submitted by the Member or user, which may or may not be accurate or truthful. The term "verified" or "certified" is not to be in anyway construed as a guarantee of any information provided by the Member to you or by the Member or user to SM.com.
16. LIMITATION OF LIABILITY
16.1 To the fullest extent permissible under applicable law, SM.com and its Affiliates shall not be liable under any circumstances, including but not limited to negligence, for any direct, indirect, incidental, special or consequential damages including but not limited to lost profits that result from:
16.2 You specifically agree that SM.com and its Affiliates are not responsible or liable for any information on the GK.com website which is obscene, lewd, lascivious, filthy, excessively violent, harassing, unlawful, defamatory, harassing, libelous, privacy invading, sexually and/or racially offensive, abusive, threatening, harmful, vulgar, obscene, illegal or otherwise objectionable offensive, vulgar, racist, harmful, or otherwise unfit for use on the GK.com website or conduct of any other party or any infringement of another's rights, including intellectual property rights.
16.3 In no event, except in jurisdictions where such provisions are restricted, shall SM.com and its parents, subsidiaries, Affiliates, owners, officers, directors, agents, principals, and employees be liable to you or to any third party for any exemplary, incidental, indirect, consequential, special or punitive damages, including any and/or lost profits arising from your use of the GK.com website, the Service, any and all other sites, any and all services, advertising, banners, and/or any part of the GK.com website and/or any service or services offered, even if SM.com has been advised of the possibility of such damages. In the event of a claim by you against SM.com or its parents, subsidiaries, Affiliates, owners, officers, directors, agents, principals, and employees, any and all damages, expenses, losses, costs or liability shall be limited to a refund of your membership fees.
16.4 You agree that SM.com and its Affiliates shall never in any way be liable to you for more than the amount you paid for your membership fees and that, for any claim for breach of this Agreement or any other claim you may have with regard to the GK.com website or Service, your sole and only form of compensation shall be a refund of your membership fees.
16.5 In no event shall SM.com or its Affiliates be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the Service, including without limitation, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other registered users or Members of this Service or persons you meet through this Service. You agree to take reasonable precautions in all interactions with other Members, particularly if you decide to meet offline or in person. You understand and agree that SM.com and its Affiliates make no representations, guarantees, either express or implied, regarding your ultimate compatibility with individuals you meet through the Service. You should never provide your personal financial information (for example, your credit card or bank account information, SSN, etc.) to any other Member.
17.1 You agree to indemnify and hold harmless SM.com and its parents, subsidiaries, Affiliates, owners, officers, directors, agents, principals, and employees, from any loss, liability, claim, demand, or damage, asserted by any third party due to or arising from the content you transmit to or through the Service, as well as your conduct on or arising from your use of the Service, including but not limited to your use of the Service in violation of this Agreement.
20. PROFILE DISCLAIMER
21. U.S. EXPORT CONTROLS
Any and/or all software from SM.com and each of its parents, subsidiaries, Affiliates, owners, officers, directors, agents, principals, and employees is subject to United States export control laws and regulations. Under no circumstances may any software from this GK.com website be downloaded or otherwise exported or re-exported:
a. into or to a national or resident of Libya, Iran, Cuba, North Korea, Iraq, Syria, or any other country to which the U.S. has embargoed goods ("Embargoed Country"); or
b. to anyone on the U.S. Treasury Department's Table of Denial Orders. By using this GK.com website and any software and/or by downloading any software, you represent and warrant that you are not located in, under the control of, or a national or resident of any such Embargoed Country.
22. OTHER DISCLAIMERS
22.1 SM.com assumes no responsibility for any interruption, technical malfunctions, error, defect, deletion, omission, communications line failure, delay in operation or transmission, unauthorized access to, theft or destruction, or alteration of, Members and/or users and/or standard Member communications. This includes personal injury or damage to users, Members, standard Member, or anyone else or to any person's computer related to or resulting from participating or downloading materials in connection with SM.com and each of its services, its parents, subsidiaries, Affiliates, officers and employees.
22.2 SM.com cannot guarantee and does not promise any specific results from use of the Service and/or the GK.com website.
23. DISPUTE RESOLUTION/WAIVER OF REPRESENTATIVE ACTION
23.1 By checking the box below and entering into this Agreement, you agree that, if any dispute arises out of or in any way related to this Agreement and/or your use of the GK.com website and/or the SM.com Network, any and all such disputes shall be resolved by submission to binding arbitration in San Francisco, California before a retired judge or justice with ADR Services, Inc. pursuant to the ADR Services, Inc. Arbitration Rules in effect at the time of any such dispute. You and SM.com agree that the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. If the parties are unable to agree on an ADR Services retired judge or justice within fifteen (15) calendar days of a demand for arbitration filed with ADR Services by either of us, ADR Services will follow the procedure in its Arbitration Rules to name a retired judge or justice who will act as the sole arbitrator. Any decision of the arbitrator may be confirmed by a court of competent jurisdiction and the ensuing judgment may thereafter be enforced in the same manner as a judgment in a civil action. The ensuing judgment may also be appealed pursuant to California Code of Civil Procedure section 1294.2 or applicable federal law. This arbitration provision is governed by the Federal Arbitration Act.
23.2 Except as otherwise required under applicable law, (1) you and SM.com expressly intend and agree that neither will assert any class actions or representative actions, nor will such actions or procedures apply in any arbitration pursuant to this Agreement; (2) you and SM.com agree that neither will assert class action or representative action claims against the other in arbitration or in any other proceeding or action; and (3) each of you and SM.com shall only submit your own, individual claims in arbitration and will not seek to represent the interests of any other person.
23.3 You are entitled to seek the advice of your own legal counsel before entering into this Agreement as well as at any time after you enter into this Agreement. If you enter into this Agreement by checking the box below, SM.com will assume that you have either consulted with your own legal counsel or decided that you do not need to do so before entering into this Agreement.
25. AUTOMATIC RENEWAL OF YOUR MEMBERSHIP
25.1 IN ORDER TO PROVIDE CONTINUOUS SERVICE, SM.COM AUTOMATICALLY RENEWS YOUR 1-MONTH MEMBERSHIP PACKAGE ON THE DATE SUCH SUBSCRIPTION EXPIRES. 3-MONTH AND 6-MONTH MEMBERSHIP PACKAGES ARE NOT AUTOMATICALLY RENEWED.
25.2 BY CHECKING THE BOX BELOW AND ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOUR 1- MONTH SUBSCRIPTION WILL AUTOMATICALLY RENEW UNTIL YOU CANCEL IT, AND YOUR ACCOUNT WILL BE SUBJECT TO THIS AGREEMENT. BECAUSE YOU DECIDE ON A MONTHLY BASIS WHETHER TO CANCEL YOUR MEMBERSHIP OR AUTOMATICALLY RENEW IT, YOU ARE ONLY OBLIGATED TO MAKE PAYMENTS ON A MONTHLY BASIS.
25.3 THE MONTHLY CHARGES TO YOUR ACCOUNT AS PART OF THE AUTOMATIC RENEWAL PROCESS WILL BE THE SAME AS THE INITIAL MONTHLY CHARGE TO YOUR ACCOUNT. HOWEVER, THE AMOUNT OF THE MONTHLY CHARGE MAY CHANGE. YOU WILL BE MADE AWARE OF THAT CHANGE BY A NOTICE POSTED ON THE GK.COM WEBSITE WHICH WILL REQUIRE YOUR AGREEMENT TO THAT CHANGE BY CHECKING A BOX ON THE NOTICE TO CONTINUE YOUR MEMBERSHIP. IF YOU DO NOT AGREE TO THAT CHANGE. YOU MAY TERMINATE YOUR MEMBERSHIP BY SENDING AN EMAIL TO SUPPORT@GKISS.COM. IF YOU DO NOT CHECK A BOX ON THE NOTICE ACCEPTING THAT CHANGE, SM.COM WILL TERMINATE YOUR MEMBERSHIP.
25.4 AT ANY TIME DURING YOUR MEMBERSHIP WITH SM.COM, IF YOU DO NOT WISH TO HAVE YOUR MEMBERSHIP AUTOMATICALLY RENEWED, PLEASE SEND AN E-MAIL TO SUPPORT@GKISS.COM SO ADVISING, AND SM.COM WILL CANCEL THE AUTOMATIC RENEWAL FEATURE AND TERMINATE YOUR MEMBERSHIP. IN THE EVENT THAT RENEWAL OF YOUR MEMBERSHIP IS CONTROLLED BY A THIRD PARTY, SUCH AS AN APP STORE, SM.COM WILL PROVIDE YOU WITH DIRECTIONS ON HOW TO CANCEL THE AUTOMATIC RENEWAL FEATURE. PLEASE BE ADVISED THAT CANCELLATION UNDER THOSE CIRCUMSTANCES IS A MATTER OF YOUR AGREEMENT WITH THAT THIRD PARTY, OVER WHICH SM.COM HAS NO CONTROL.
25.5 IF BY REASON OF DEATH OR DISABILITY YOU ARE UNABLE TO RECEIVE THE SERVICE PURSUANT TO THIS AGREEMENT, YOU OR YOUR ESTATE MAY ELECT TO BE RELIEVED OF THE OBLIGATION TO MAKE PAYMENTS FOR SERVICES OTHER THAN THOSE RECEIVED BEFORE DEATH OR THE ONSET OF DISABILITY. HOWEVER, IF A PHYSICIAN DETERMINES THAT THE DURATION OF YOUR DISABILITY WILL BE LESS THAN SIX MONTHS, SM.COM MAY EXTEND THE TERM OF THIS CONTRACT FOR A PERIOD OF SIX MONTHS AT NO ADDITIONAL CHARGE TO YOU IN LIEU OF CANCELLATION.
26. MEMBER'S RIGHT TO CANCEL CONTRACT
26.1 YOU MAY CANCEL THIS AGREEMENT WITHOUT ANY PENALTY OR OBLIGATION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY FOLLOWING THE DATE YOU SIGNED THIS AGREEMENT ELECTRONICALLY, EXCLUDING SUNDAYS AND HOLIDAYS. TO CANCEL THIS AGREEMENT DURING THAT THREE-DAY PERIOD, EMAIL A SIGNED AND DATED NOTICE WHICH STATES THAT YOU ARE CANCELING THIS AGREEMENT, OR WORDS OF SIMILAR EFFECT. THIS NOTICE SHALL BE SENT TO: SUCCESSFULMATCH.COM AT SUPPORT@GKISS.COM