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 FXB. 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 legal@flixband.com. 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 FXB.

1.2.3. “FXB” means Kiiroo B.V., a Netherlands B.V. with registered offices at Mondriaantoren Amstelplein 62, 30th floor, 1096 BC Amsterdam, Netherlands, and any of its affiliates or licensees who may provide Tangibles or Services under license in your jurisdiction.

1.2.4. “Flixband” means the device sold on the Website for the purpose of interacting with compatible adult media.

1.2.5. “Free Trial” means a period of time after the purchase of a Flixband during which you may access the Member’s Area without charge.

1.2.6. “Member” means a person who has an active Membership or Free Trial.

1.2.7. “Membership” means the right to use any Videos in FXB’s Member’s Area in exchange for a monthly fee.

1.2.8. “Member’s Area” means that portion of any FXB web site which is only accessible to Members.

1.2.9. “Member’s Area Video” means a Video which is made available in the Member’s Area to users with a Membership.

1.2.10. “PPV Video” means a Video which is sold on a FXB 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.

1.2.11. “Service” includes Tangibles, Videos, Flixband.com content, the Flixband’s software, any web site operated by FXB, any service provided by FXB and any firmware, software or images used in connection with FXB’s business.

1.2.12. “Shipper” means any third party common carrier package delivery service FXB uses to ship Tangibles orders, including the United States Postal Service.

1.2.13. “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.

1.2.14. “Tangible” means physical items sold by FXB.

1.2.15. “Video” means a video recording, animated recording, streaming video content or other unit of media content or interactive experience available using a FXB web site or service.

1.2.16. “Website” means FXBFlixband.com and all sub-pages.

1.2.17. “$” means the lawful currency of the United States of America.

1.2.18. Other terms may be defined in the body of the Agreement.

1.3. 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, FXB retains some of your personal information. Except as disclosed herein, FXB will not use, give, sell, license or allow third parties to access your personal information without your consent.

2.2. Credit Card Processors: FXB 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 FXB makes commercially reasonable attempts to use trustworthy Credit Card Processors, FXB 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: FXB 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 FXB makes commercially reasonable attempts to use trustworthy Shippers, FXB 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: FXB uses e-mail as its primary means of communication with you. You must provide a valid e-mail address with any order and FXB 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 FXB Services or the products or services of other companies with whom FXB conducts business. You may opt in or out of these e-mails at any time.

2.5. Records: For legal and business purposes, FXB maintains records of your transactions with FXB. FXB may use this information to optimize its business practices or send you marketing e-mails as mentioned in section 2.4.2. FXB may make such information available to third parties with whom FXB has contracted to provide business consulting services. If FXB provides such records to third parties for this purpose FXB will do so in a manner that does not connect your name or other identifiable personal information with your interactions with FXB’s Services. FXB will not provide such records to third parties for those third parties’ own marketing purposes.

2.6. Data on Use of the Services: FXB 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, FXB 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 Flixband 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, FXB grants you a personal, worldwide, non-assignable, non-transferrable, non-sublicenseable, non-exclusive license to download and use Member’s Area Videos and FXBFlixband.com software for your personal entertainment only. You may transfer the Member’s Area Videos or FXBFlixband.com software to an unlimited number of computers or devices on which you wish you use the Flixband provided that those computers or devices are owned by you and that you use the Member’s Area Videos and FXBFlixband.com software only for your own personal entertainment.

3.1.3. FXB Software and Firmware If you purchase a Flixband, in consideration of the purchase price of the Flixband, FXB 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 Flixband 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 FXB, then: (1) any licenses granted to you by FXB shall terminate and become null and void; (2) FXB may suspend or cancel your Membership without further notice or refund and (3) FXB 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 FXB’s actual economic damages cannot be determined or are less than $100,000, you agree to pay FXB liquidated damages of $100,000.

3.3. Rights Reserved: Other than the licenses granted in this section 3, FXB reserves all rights to all patents, trademarks, copyrights, images, logos, branding, service marks, trade secrets or other intellectual property owned or licensed by FXB. Except as otherwise provided in this section 3, you may not use any of FXB’s intellectual property without FXB’s 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 FXB.

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 FXB becomes aware that you are disqualified from using the Services for any of these reasons, FXB may terminate any active Membership you have and FXB may cancel any order for Tangibles which has not yet been shipped. FXB 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 FXB’s discovery of your disqualification. FXB 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 FXB’s intellectual property rights, obstruct or interfere with the functioning of FXB’s web site or the Services, conduct business intelligence gathering or industrial espionage or harm FXB’s business in any manner. By using the Services, you also swear that you are not and will not use them for any illegal, immoral, obscene or unintended purpose, that you will not publicly display or supply or make available to minors or other prohibited persons any of the Services. By using the Services, you also swear that you are not using them for the purpose of initiating or assisting any civil or criminal action against FXB, and you agree not to join any class action or other civil lawsuit against FXB. If FXB 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, FXB may terminate any active Membership you have and FXB may cancel any order for Tangibles which has not yet been shipped. FXB 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 FXB’s discovery of your disqualification. FXB may also temporarily suspend your Membership or delay a pending Tangibles shipment while investigated suspected misconduct. If FXB learns that such violations of this Agreement constitute or possibly constitute a crime, FXB 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. FXB 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, FXB 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 FXB 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 FXB 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 FXB at legal@flixband.com. You will have two options: (1) If you wish to continue to use the Tangible, FXB 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 FXB at an address FXB 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, FXB will test the Tangible and if FXB can confirm that it is defective, FXB 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 FXB’s 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 FXB 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) FXB may incur in this case.

5.1.4. Time Limitation: FXB 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, FXB 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 FXB or the Credit Card Processor who processes your transactions. If you cancel your Membership, your credit card will no longer be charged for further months of Membership, and you will continue to be a Member until the date when your credit card would have been charged again had you not cancelled your Membership.

5.2.3. Refunds:FXB will not issue refunds for already-billed Memberships under any circumstances.

5.3. PPV Video Billing:

5.3.1. Download: If you purchase a PPV Video, after your credit card transaction has been successfully completed, FXB will give you instructions detailing how to download your PPV Video. Each purchase of a PPV Video is a stand-alone transactions and your credit card will not be charged again in relation to that purchase.

5.3.2. Refunds: FXB will not issue refunds for purchases of PPV Videos under any circumstances.

5.4. General Terms Regarding Billing:

5.4.1. Processor Cascade: FXB 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 FXB retains your credit card information, FXB 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 FXB 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; FXB 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: FXB creates and operates some Services in cooperation with third parties. FXB also provides links to or promotes third-party products and services which may or may not function or be operated in conjunction with FXB. FXB excludes and disclaims any warranties or liabilities in connection with the acts or omissions of any such third parties, their performance or non-performance of any functions related to the Services, their intellectual property, or elements of the Services provided by them. If your use of the Services includes your use of a Flixband, FXB is not liable for any injury or damages caused by using the Flixband in a manner inconsistent with their instructions, by excessive use of or the Flixband, by improper maintenance of the Flixband or by use of the Flixband in unsanitary or extreme conditions or unsuitable or unreasonable locations.

6.3. Limitation of Liability: To the maximum extent permitted by law, FXB and FXB’s suppliers and distributors and third party partners will not be responsible for indirect, special, consequential, exemplary or punitive damages, including damages to your person, your mental health, your computer or device or their data or your property or loss of goodwill or other intangible losses arising out of the use of the Services. To the maximum extent permitted by law, the total liability of FXB 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 FXB 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 FXB, 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 FXB, 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:
Kiiroo B.V.
Mondriaantoren Amstelplein 62, 30th floor
1096 BC Amsterdam, Netherlands

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 legal@flixband.com 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 FXB and you concerning the Services and the subject matter hereof.

9.2. Amendment: FXB may amend this Agreement at any time. FXB will notify you if the Agreement is amended. Continued use of the Services after FXB amends the Agreement constitutes your agreement to any such amendment.

9.3. Waiver of Default: No consent or waiver, express or implied, by FXB 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 FXB 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 FXB 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. FXB 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 FXB.

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 Netherlands, without regard to its conflict of laws provisions. FXB and you voluntarily submit to the non-exclusive jurisdiction of the Netherlands 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 FXB 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 FXB, FXB 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: FXB 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 FXB’s 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.