WEBMASTER AGREEMENT FOR BANGIN3D.COM
THIS AGREEMENT was made between MCP ENTERTAINMENT, Inc., owner and
operator of www.Bangin3D.com, and www.CashIn3D.com (SITE we/us/our),
and the Member Webmaster submitting this Application (Webmaster or
you/your) on the date the online Application Form is submitted to and
approved by the SITE. IMPORTANT! By accessing, using, viewing, reading,
printing, installing, or downloading any material from the SITE, or
becoming an affiliate member to the SITE, you agree to be bound by
these Terms and Conditions. This Agreement is intended to be governed
by the Electronic Signatures in Global and National Commerce Act
(E-Sign Act). You manifest your agreement to these Terms and Conditions
by any act demonstrating your assent thereto, including clicking any
button containing the words "I agree" or similar syntax. You may submit
a paper copy of this transaction and print this form for your personal
records. You have the right to withdraw your consent to use the E-Sign
Act by emailing us. Your consent to use the E-Sign Act is limited to
providing the information on this form. Access to this electronic
record requires a simple browser program such as Internet ExplorerTM or
NetscapeTM and a computer. The terms and conditions of this Agreement
are subject to change by the SITE at any time in its discretion. You
will be provided reasonable notice of any such changes. Notice of any
change by e-mail, to your address on our records, or by posting the
changes on the SITE, is considered sufficient notice for notifying you
of a modification to the terms and conditions of this Agreement.
Modifications may include, but are not limited to, changes in the
amounts and/or in the scope of available commission fees, commission
schedules, payment procedures, and Webmaster Program rules. All such
modifications shall take effect forty-eight (48) hours after the SITE
serves notice, as provided above, unless the SITE indicates otherwise.
If any modification is unacceptable to you, your only recourse is to
terminate this Agreement. Any continued performance under this
Agreement, following our posting of a change notice or new agreement on
our SITE, shall constitute confirmation of Webmaster's acknowledgement
and assent to any such modifications. Please consult this Agreement as
posted on SITE regularly and read them carefully before using the SITE.
You affirm that you have read this Agreement and understand, agree and
consent to its Terms and Conditions. __You are solely responsible for
obtaining access to the SITE and that access may involve third party
fees (such as Internet service provider or airtime charges). You are
responsible for those fees, including those fees associated with the
display or delivery of advertisements. In addition, you must provide
and are responsible for all equipment necessary to access the SITE
(i.e., computers, modems, and software, including the most recent
versions of Internet browsers, applications, and plug-ins).
W I T N E S S E T H:
WHEREAS, We have developed an Affiliate Webmaster Membership Program,
www.CashIn3D.com (Program) for our Web site, www.Bangin3D.com,
(hereinafter the "Web site" or "SITE"), and intend to market the
Program through various online and traditional media; WHEREAS,
Webmaster desires to use the Program to develop its Internet presence,
subject to the terms and conditions stated herein; and, WHEREAS, SITE
and Webmaster have determined that it is in their respective interests
to enter into this Agreement. NOW, THEREFORE, for good and valuable
consideration, and in consideration of the mutual covenants and
conditions herein set forth, and with the intent to be legally bound
thereby, SITE and Webmaster hereby agree as follows:
1. GRANT OF LICENSE AND WEBMASTER'S CONTENT
SITE agrees to provide access to, and membership in, the Program to
Webmaster and to provide Webmaster with the ability to market,
advertise and promote certain content, images, recordings, video,
audio, links, computer script, advertising banners, and other
promotional materials (hereinafter, "Materials") that are associated
with the Program from time to time, subject in all respects to the
terms set forth herein, and hereby grants a non-exclusive, restricted,
revocable license to use such Materials solely for the purposes set
forth in this Agreement. The SITE reserves the unequivocal right to
select, alter, delete, add to, or remove any and all Materials for use
by Webmaster. SITE's Materials may not be used in violation of any term
contained in this Agreement. Webmaster's license to use the Materials
shall automatically terminate, and all such rights shall automatically
revert to SITE upon cancellation or termination of the Webmaster's
membership or withdrawal from the Program. Webmaster may not copy,
reproduce, alter, modify, change, broadcast, distribute, transmit,
disseminate, sell or offer for sale in any manner, the Materials at any
time anywhere in the world except as expressly authorized by the SITE
in writing. Upon acceptance into the Program, SITE will begin providing
you with the information and Materials necessary to participate in the
Program. Logos, graphics or text may be created by the Webmaster,
solely with SITE's permission, which permission may be unreasonably
withheld. Any restrictions provided by the SITE with the transmission
of the Materials shall be deemed incorporated into this agreement, and
made a part hereof. Webmaster agrees to abide by any such restrictions
on the use, dissemination or display of the Materials set forth by the
SITE. The SITE reserves the right to require any text, online
agreement, documents, notices, disclaimers, or age verification devices
that may be necessary or desirable to protect the SITE's or the
Webmaster's legal or proprietary interests. The Webmaster shall be
solely responsible for all content available on or through its website
used to promote any content in the SITE's network, and operation of
such promotional website shall at all times be subject to the terms of
this Agreement. Webmaster further warrants that its website does not
and will not infringe upon, or contain any content that infringes upon,
the rights of third parties, nor does it violate any intellectual
property rights of, or otherwise violate any applicable law, rule or
regulation. SITE shall have no obligations with respect to the content
available on or through any participating promotional website,
including but not limited to, any duty to review or monitor any content
found on such website. For avoidance of doubt, Webmaster is solely
responsible for the content on Webmaster's website. As more fully
described infra, SITE shall remain the owner of all intellectual
property rights pertaining to the Materials, which may be licensed from
third party content producers. Any and all derivative works generated
by Webmaster shall inure to the benefit of the SITE, which shall be
considered the sole owner and/or license holder of such derivative
works, to the greatest extent permitted by law.
SITE hereby grants to Webmaster a revocable, limited, non-exclusive,
non-transferable license to use the names of SITE's current and future
websites that you are permitted hereunder to refer traffic to ("Site
Names"). Webmaster acknowledges and agrees that Webmaster will
not register, or attempt to register, any of the Site Names as a Google
"AdWord" or Yahoo "Keyword" or any similar search engine advertising
program. Webmaster further agrees that any such registration, or
attempt at registration, by Webmaster will be grounds for Webmaster's
immediate termination, without compensation, and that Webmaster will
immediately undertake to assign such Site Name(s) registered by
Webmaster with Google AdWords and/or another similar advertising
program, to us.
2. ENROLLMENT PROCEDURE
To begin the enrollment procedure, you must submit a completed SITE
Signup Application Form through our Signup page located at:
http://www.CashIn3D.com. When you sign up, you must provide a valid
email address. Failure to do so will result in your account being
deleted. We will evaluate your application in our sole discretion and
will notify you of your acceptance or rejection. We reserve the
discretion to accept or reject applications or to subsequently
terminate you after acceptance for any reason including, but not
limited to 1) if unlawful content appears on your SITE; 2) if your SITE
violates our Acceptable Use Policy found in this Agreement; 3) if your
SITE promotes or facilitates illegal activity, or violates the rights
of others such as copyright, trademark, rights of publicity, patent
rights, privacy rights, or other intellectual property infringement; 4)
if you encourage password theft or hacking; 5) if your SITE does not
receive a sufficient number of unique hits; or 6) if SITE deems your
application or SITE to be unsuitable for any reason whatsoever. The
SITE will not accept accounts originating from or related to any
location which include, but which are not limited to, webmasters from:
Albania, Armenia, Azerbaijan, Belarus, Brazil, Bulgaria, China, Cost
Rica, Croatia, Czech Republic, Estonia, Georgia, Hungary, India,
Indonesia, Israel, Japan, Jordan, Kaliningrad, Kazakhstan, Korea,
Kyrgyzstan, Latvia, Lithuania, Malaysia, Moldova, Pakistan, Poland,
Philippines, Romania, Russia, Singapore, Slovakia, Slovenia, Syria,
Taiwan, Tajikistan, Thailand, Turkey, Turkmenistan, Ukraine, United
Arab Emirates, Uzbekistan and Yugoslavia.
3. TERM
This Agreement and the provisions hereof, shall be in full force and
effect commencing on the date accepted by SITE and continuing until
terminated by either of the parties in accordance with the Termination
provisions set forth infra.
4. COMPENSATION AND BENEFITS
The SITE currently offers the following program for its Webmaster
clients. The SITE employs a tiered Revenue Share program applicable to
Webmasters referred clients net initial sign up and all net recurring
billings of Webmasters referred client to SITE for the life of
Webmasters referred clients membership with SITE. SITE agrees to pay
Webmasters based on the following Tiered Revenue Share schedule. Tier
1: Fifty Percent (50%) for Webmaster referred clients 1-50 during a
single Thirty (30) day pay period. Tier 2: Sixty Percent (60%) for
Webmaster referred clients 51-200 during a single Thirty (30) day pay
period. Tier 3: Seventy Percent (70%) for Webmaster referred clients
201 and on during a single thirty (30) day pay period. In
addition, SITE also currently offers a five percent (5%) Revenue
Sharing program for all clients referred to SITE via another Webmaster
referred to SITE by the Webmaster whom is party to this agreement.
Family members and people residing at the same address as the webmaster
are not eligible as referrals and any attempt to "cheat" the program
will result in immediate account termination. Webmaster also
acknowledges and agrees that Webmaster shall not be entitled to a
commission or referral fee from the SITE for any subscription that the
SITE determines is the result of possible fraudulent activity or any
activity that violates the express or implicit terms set forth in this
Agreement. Webmaster further acknowledges and agrees that the SITE
shall have the right, in its sole and exclusive discretion, at any time
to expand or modify what it determines to constitute possible
fraudulent or unacceptable activity. Without limiting any such
activity, such activity shall include the following circumstances or
activities: 1) Where there has been an attempt to put through a credit
card with a bin number that is listed in a negative bin number
database; and 2) Where there have been sequential or multiple attempts
to register or subscribe from a credit card using the same bin number
and sequential or multiple number strings to complete the credit card
number. Webmaster acknowledges and agrees that Webmaster shall not be
entitled to a commission or referral fee for any subscriber who
Webmaster sent or referred to one or more of the Sites in violation of
the terms of this Agreement. Additional promotional benefits or
restrictions may be implemented from time to time, and notices of such
benefits or restrictions shall be conspicuously stated on the SITE.
5. HOSTING SERVICES.
N/A.
6. BILLING AND DISBURSEMENT
SITE reserves the right to determine the manner in which payments will
be processed. Disbursements are in all cases made monthly, but in many
cases made on a more regular basis. Webmasters can check their revenue
statistics by accessing the statistics web page located at
http://www.CashIn3D.com, access to which will be provided upon
acceptance of this Agreement. The SITE reserves the right to cancel any
account that has an unusually high number of chargebacks and refunds.
7. REPRESENTATIONS AND WARRANTIES
Webmaster warrants that Webmaster is the sole owner of any and all
necessary rights, title and interest to the content not provided by
SITE, but contained or displayed on the Webmaster's website such as
text, images, logos, graphics and functional elements. Webmaster
further warrants that such content complies with this Agreement, and
that such content is free of claims to the content by third parties.
Webmaster further warrants that Webmaster is at least eighteen (18)
years of age or over the age of majority if Webmaster resides and/or
conducts business in states, provinces or countries where the age of
majority is greater than eighteen (18) years, and will submit proof of
age upon request by SITE. Webmaster may not participate in the Program
in any way if they are not of the age of majority in the state,
province or country where Webmaster resides and/or conducts business.
Webmaster represents and warrants that the execution, delivery and
performance of this Agreement by Webmaster is within Webmaster's legal
capacity and power, has been duly authorized by all requisite action,
does not require the approval or consent of any other persons, and
neither violates nor constitutes a default under the (i) provision of
any law, rule, regulation, order, judgment or decree to which Webmaster
is the subject or which is binding upon the Webmaster, or (ii) the
terms of any other agreement, document or instrument applicable to or
binding upon the Webmaster. Webmaster represents and warrants that
Webmaster owns or is otherwise entitled to contract on behalf of the
entity which owns the rights to Webmaster's website. Finally, Webmaster
represents that Webmaster's website is in full compliance with Section
2257 of Title 18, United States Code, the "Records Keeping and Labeling
Act." Webmaster acknowledges that it is Webmaster's legal obligation to
comply with the disclosure provisions of the Records Keeping and
Labeling Act, and that Webmaster must conspicuously identify a records
custodian and records address for each image appearing on the
Webmaster's website. Webmaster represents and warrants that any and all
content it provides on its SITE is compliant with Title 18 U.S.C.
§2257, and that all models depicted thereon were at least eighteen (18)
years of age when the content was created. The SITE makes no
representations or warranties other than those specifically contained
herein, and specifically disclaims any implied warranties, including
merchantability or fitness for a particular purpose.
8. ACCEPTABLE USE POLICY FOR WEBMASTERS
Webmaster agrees to be bound by the following general policies in
connection with all content with which the SITE's promotional
materials, links or logos are associated:
* Illegal content is strictly forbidden. Illegal content includes, but
is not limited to: child pornography, incest, warez content, scat,
coffins, defecation, urination, genital mutilation, sac religious, teen
modeling, actual or simulated rape, sexual violence, menstruation,
obscenity, bestiality, threats of physical harm to persons or property,
programs containing viruses, pirated software, wire fraud, drug
trafficking, and/or violations of international export control laws.
Any hits directed from websites containing illegal content or obscene
material will be immediately terminated.
* SITE reserves the right to review and/or reject any content affiliation created by Webmaster.
* No traffic is allowed from websites that contain Content that
constitutes an infringement, misappropriation or violation of any
person's intellectual property rights such as copyrights, trademark
rights, right of publicity, patent rights, personal property rights,
privacy rights or other rights.
* SITE may not be promoted on any website that encourages password trading or hacking.
* Webmaster may not attempt to cheat, defraud or mislead SITE in any way.
* Any fraudulent, deceptive or unfair transactions or trade practices
are strictly forbidden. The Webmaster agrees to fully comply with the
United States Federal Trade Commission ("FTC") statutes and regulations
(whether or not Webmaster does business in the United States or with
United States-based customers), and any related rules, policies, and
advisory opinions issued by the FTC.
* Webmaster shall not engage in any activities that may be harmful to
the reputation, image, goodwill or reputation of SITE.
* Violation of the restricted non-exclusive license provided in this Agreement is prohibited.
* Webmaster may not use SITE's Materials or images to promote other websites.
* Webmaster may not circumvent, or attempt to circumvent, the access
screen requiring users to enter their birth date and requiring
agreement to the SITE's Terms and Conditions.
* SITE enforces a strict, zero tolerance policy with respect to child
pornography. No SITE may use models under the age of eighteen (18) or
suggest that its models are under the age of eighteen (18), either
through text or other implication. Any Webmaster suspected of violating
this zero tolerance provision shall be terminated from the Program. If
Webmaster sends hits from any website containing CHILD PORNOGRAPHY,
Webmaster's account will be deleted and all monies will be forfeited.
* Webmaster's website must contain all information required by 18 U.S.C. §2257.
* Webmasters may not "hotlink" to any of SITE's images, banners, and/or graphics.
* Webmasters may not solicit or permit any minor to become a customer of the Websites.
* Webmaster may not harvest or otherwise collect information about
others, including but not limited to e-mail addresses, except as needed
to operate Webmaster SITE and as permitted in Webmaster website's
privacy policy;
* Webmasters agree to indemnify and hold SITE harmless from any and all
liabilities, claims, damages (including attorney's fees), threatened or
incurred as a result of Webmaster's activities.
* SITE shall retain the discretion to interpret, modify, terminate
and/or enforce any of the general policies for Webmasters in the SITE's
sole discretion. Suspected violation of any of the General Policies may
result in termination from the Program and forfeiture of any future
commissions or payments; whether earned or unearned. Although, the SITE
reserves the right to cancel any account that has an unusually high
number of chargebacks and refunds, the SITE does not require, as a
condition of payment of commissions to Webmasters, that any minimum
conversion ratios be achieved from trial sign-ups to full membership,
nor that members remain as members for any specified period of time.
SITE reserves the right to terminate a Webmaster, with payment for
amounts due Webmaster prior to termination (provided Webmaster has
otherwise complied with the terms of this Agreement) if the commissions
paid to the Webmaster for "trial memberships" do not convert to "full
memberships" in ratios that are financially acceptable to SITE. There
is no deduction from payments that would otherwise be due Webmasters
for "chargebacks" initiated by the referred member or credits given to
members who were referred by the Webmaster. SITE will apply an imputed
deduction from payments to Webmaster for members that do not visit SITE
after sign-up, obtain credits or initiate chargebacks, without basis,
or that do not subscribe to a trial membership with a good-faith
intention to convert to full membership upon confirmation that SITE
contains the represented content.
9. PROMOTIONAL RESTRICTIONS AND NO EMAIL SOLICITATIONS
Webmaster may use any reasonable promotional tool desired, with the
following exceptions: _A. NO EMAIL SOLICITATIONS OF ANY KIND. SITE will
not accept, under any circumstances, any referrals that are obtained,
directly or indirectly, from email promotions or email marketing,
whether or not such email promotions comply with the Controlling the
Assault of Non-Solicited Pornography and Marketing Act of 2003 (the
"CAN-SPAM ACT"). Any breach of this restriction will result in
Webmaster's immediate termination and forfeiture of any further
payments, whether or not such payments are attributable to email
marketing of SITE. _B. NO DECEPTIVE ADVERTISING. All forms of deceptive
or unfair advertising are prohibited. Any Webmaster who is uncertain as
to the requirements of federal advertising law should obtain legal
advice before engaging in any promotion. More information about
deceptive trade practices can be found at www.FTC.gov. _C. NO SPYWARE
OR AD-AWARE. SITE will not accept referrals that were obtained thru the
use of Spyware, Ad-aware or any other similar software that sends data
back to the user without the user's knowledge or consent. _D. By
checking the box below indicating you agree to the conditions outlined
herein, by clicking the "Submit Info" on our sign-up form and by
supplying the SITE(S) with the required information, you acknowledge
and agree that you have clicked on the link in this Paragraph 9D and
that you will comply with the terms of the Federal Trade Commission
Order (the "Order") and the terms set forth herein regarding the No
Email Solicitations Of Any Kind restrictions set forth in this
Paragraph 9. FTC ORDER _
10. AGE VERIFICATION
The SITE takes a strong stance in favor of preventing minors from
accessing sexually oriented materials. Accordingly, all images,
web pages, or tours depicting sexual activity must be protected by some
form of legal age verification. Therefore, the SITE adopts the
following policies with regard to online age verification: 1) Webmaster
must prevent users from accessing images depicting sexual activity
(i.e. hardcore images) unless the user has passed through some type of
online age verification device or 2) Alternatively, users must be
restricted to accessing pages or content, or Material containing only
soft core (i.e. no sexual activity or explicit display of the genitals)
materials, which content will be separately identified and provided by
the SITE. Violation of this age verification requirement will be
considered a material breach, and grounds for automatic termination of
this Agreement.
11. METATAGS
Webmaster agrees not to utilize any false, misleading or infringing
metatags tied to the Webmaster's SITE. In addition, Webmaster agrees
not to utilize any metatags that would imply or suggest that underage
or illegal content may be found on the submitted SITE.
12. DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
A. NOTICE OF CLAIMED INFRINGEMENT. The SITE respects the intellectual
property of others, and we ask our users to do the same. We voluntarily
observe and comply with the United States' Digital Millennium Copyright
Act. If you believe that your work has been copied in a way that
constitutes copyright infringement, or your intellectual property
rights have been otherwise violated, please provide SITE's Designated
Copyright Agent the following information: _(i) an electronic or
physical signature of the person authorized to act on behalf of the
owner of the copyright or other intellectual property interest; _(ii)
description of the copyrighted work or other intellectual property that
you claim has been infringed; _(iii) a description of where the
material that you claim is infringing is located on a SITE; _(iv) your
address, telephone number, and email address; _(v) a statement by you
that you have a good faith belief that the disputed use is not
authorized by the copyright owner, its agent, or the law; and _(vi) a
statement by you, made under penalty of perjury, that the above
information in your Notice is accurate and that you are the copyright
or intellectual property owner or authorized to act on the copyright or
intellectual property owner's behalf. __You may send your Notice of
Claimed Infringement to: support@CashIn3D.com __Please do not send
other inquires or information to our Designated Agent. __B. NOTICE AND
TAKEDOWN PROCEDURES. The SITE implements, and the Webmaster consents
to, the following "notice and takedown" procedure upon receipt of any
notification of claimed copyright infringement. The SITE reserves the
right at any time to disable access to, or remove any material or
activity accessible on or from the SITE or any Materials claimed to be
infringing or based on facts or circumstances from which infringing
activity is apparent. It is the firm policy of the SITE to
terminate the account of repeat copyright infringers, when appropriate,
and the SITE will act expeditiously to remove access to all material
that infringes on another's copyright, according to the procedure set
forth in 17 U.S.C. §512 of the Digital Millennium Copyright Act
("DMCA"). The SITE's DMCA Notice Procedures are set forth in the
preceding paragraph. If the notice does not comply with Paragraph 19
and §512 of the DMCA, but does comply with three requirements for
identifying SITE that are infringing according to §512 of the DMCA, the
SITE shall attempt to contact or take other reasonable steps to contact
the complaining party to help that party comply with the notice
requirements. When the Designated Agent receives a valid notice, the
SITE will expeditiously remove and/or disable access to the infringing
material and shall notify the affected user. Then, the affected user
may submit a counter-notification to the Designated Agent containing a
statement made under penalty of perjury that the user has a good faith
belief that the material was removed because of misidentification of
the material. After the Designated Agent receives the
counter-notification, it will replace the material at issue within
10-14 days after receipt of the counter-notification unless the
Designated Agent receives notice that a court action has been filed by
the complaining party seeking an injunction against the infringing
activity. The SITE reserves the right to modify, alter or add to this
policy, and all users should regularly check back to these Terms and
Conditions to stay current on any such changes. __C. It is important to
understand that knowingly making a material misrepresentation
concerning alleged copyright infringement may result in significant
civil penalties including damages, costs and attorneys fees incurred by
the alleged infringer or Webmaster. In the event Webmaster's site is
taken down pursuant to the DMCA, re-bills attributed to the noticed
site will be suspended during the "take down" period. Any repeat
violators of the DMCA will be terminated and banned from the Program.
13. CONFIDENTIALITY AND PRIVACY POLICY
A. "Confidential Information" shall mean any confidential technical
data, trade secret, intellectual property, know-how or other
confidential information disclosed by any Party hereunder in writing,
orally, or by drawing or other form and which shall be marked by the
disclosing party as "Confidential" or "Proprietary." If such
information is disclosed orally, or through demonstration, in order to
be deemed Confidential Information, it must be specifically designated
as being of a confidential nature at the time of disclosure and reduced
to writing and delivered to the receiving party within ten (10) days of
such disclosure. _B. Notwithstanding the foregoing, Confidential
Information shall not include information which: (i) is known to the
receiving party at the same time of disclosure or becomes known to the
receiving party without breach of this Agreement; (ii) is or become
publicly known through no wrongful act of the receiving party or any
subsidiary of the receiving party; (iii) is rightfully received from a
third party without restriction on disclosure; (iv) is independently
developed by the receiving party or any of its subsidiary; (v) is
furnished to any third party by the disclosing party without
restriction on its disclosure; (vi) is approved for release upon a
prior written consent of the disclosing party; and (vii) is disclosed
pursuant to judicial order, requirement of a governmental agency or by
operation of law. _C. The receiving party agrees that it will not
disclose any Confidential Information to any third party and will not
use Confidential Information of the disclosing party for any purpose
other than for the performance of the rights and obligations hereunder
during the term of this Agreement and for a period of five (5) years
thereafter, without the prior written consent of the disclosing party.
The receiving party further agrees that Confidential Information shall
remain the sole property of the disclosing party and that it will take
all reasonable precautions to prevent any unauthorized disclosure of
Confidential Information by its employees. The disclosing party shall
grant no license to the receiving party with respect to Confidential
Information disclosed hereunder unless otherwise expressly provided
herein. _D. Upon the request of the disclosing party, the receiving
party will promptly return all Confidential Information furnished
hereunder and all copies thereof. _E. The Parties agree that all
publicity and public announcements concerning the formation and
existence of this Agreement shall be jointly planned and coordinated by
and among the Parties. Neither party shall disclose any of the specific
terms of this Agreement to any third party without the prior written
consent of the other party, which consent shall not be withheld
unreasonably. Notwithstanding the foregoing, any party may disclose
information concerning this Agreement as required by the rules, orders,
regulations, subpoenas or directives of a court, government or
governmental agency, after giving prior notice to the other party. _F.
If a party breaches any of its obligations with respect to
confidentiality and unauthorized use of Confidential Information
hereunder, the non-breaching party shall be entitled to equitable
relief to protect its interest therein, including but not limited to
injunctive relief, as well as money damages notwithstanding anything to
the contrary to the contrary contained herein. _G. Except as otherwise
set forth in this Agreement, SITE shall be entitled to make any public
statement, press release or other announcement relating to the website
without the prior written approval of Webmaster. _H. SITE honors the
privacy of its Webmaster's personal information. Our Privacy Policy is
hereby incorporated by reference. For more information on our Privacy
Policy, please contact us.
14. INTELLECTUAL PROPERTY RIGHTS
A. Work Made for Hire. Webmaster hereby acknowledges and agrees that
the content, Materials (and all copies thereof, including all
photographs, video and audio tapes and negatives created hereunder),
and any derivative works created by the Webmaster and used on
Webmaster's site shall be deemed "works made for hire" by operation of
law in light of Webmaster being an independent contractor of SITE and
the works qualifying as a "specially commissioned work." To the extent
that such content or Materials do not qualify as a "work made for hire"
by operation of law or otherwise, Webmaster hereby agrees to assign to
SITE, and hereby does irrevocably grant, assign and transfer to SITE
for no additional consideration, all rights, title and interests in and
to the content and Materials (including all photographs, video and
audio tapes and negatives created hereunder), including without
limitation all copyrights (and derivative works generated therefrom),
patent rights, trade secrets, know-how and all other proprietary rights
in and to same, to the fullest extent permitted by law. Webmaster
agrees to sign and deliver to SITE all documents as SITE considers
desirable to evidence the assignment of all rights to SITE in and to
such content and Materials. SITE retains the copyrights and all other
intellectual property rights to all Materials provided to Webmaster for
use on Webmaster's site, along with all content created by Webmaster
appearing on the Webmaster's website. _B. Ownership. As between the
parties, Webmaster acknowledges and agrees that all rights, title and
interests in and to the content, Materials and all intellectual
property rights therein and thereto (including all United States and
foreign patents, patent applications, registered and common law
trademarks and service marks and any applications thereof, trade
secrets, know-how, copyrights, and rights of publicity and any other
proprietary rights therein and thereto) are the sole and exclusive
property of SITE, or have been licensed to the SITE by third party
content producers, and Webmaster gains no right, title or interest in
and to such materials by virtue of this Agreement other than the
limited, non-exclusive license granted above. The SITE shall be
entitled to register any works, which it has authored, or which are
assigned to SITE pursuant to this Agreement, with the U.S. Copyright
Office. _C. The parties agree that: (i) each party's marks are and
shall remain the sole property of that party; (ii) nothing in this
Agreement shall convey to either party any right of ownership in the
party's marks; (iii) neither party shall now or in the future contest
the validity of the other party's marks; and (iv) neither party shall
in any manner take any action that would impair the value of, or
goodwill associated with, such marks. The parties acknowledge and agree
that all use of the other party's marks by a party shall inure to the
benefit of the party whose marks are being used. _D. Each party hereby
grants the other party, during the term of this Agreement, a
non-exclusive, non-transferable license to use that party's trade
names, trademarks, service names, copyrights, and similar proprietary
marks as is reasonably necessary to perform its obligations under this
Agreement, provided, however, that any promotional materials containing
a party's proprietary marks will be subject to that party's prior,
written approval. _E. Each party agrees not to use the other party's
proprietary marks in a manner that disparages the other party or its
products or services, or portrays the other party or its products or
services in a false, competitively adverse or poor light. Each party
will comply with the other party's requests as to the use of the other
party's proprietary marks and will avoid any action that diminishes the
value of such marks. Each party's unauthorized use of the other's
proprietary marks is strictly prohibited. F. At any time, SITE may, at
its sole discretion, require a copy of any and all legal documentation
showing rightful ownership, or licensed distribution for any item
displayed on the Webmaster's website so as to resolve any copyright or
other legal claims that may arise. If Webmaster is unable to provide
ownership or licensing information to the complaining party and/or
SITE, then Webmaster must remove the objectionable material, or face
having the applicable pages taken down by SITE.
15. TERMINATION
The following termination rights are an addition to the termination
rights that may be provided elsewhere in this Agreement: A. SITE's
Right to Terminate: SITE shall have the right to terminate this
Agreement at will at anytime, upon written notice. All unpaid
commissions shall be paid within sixty (60) days, so long as the orders
are not canceled or returned. In the event that SITE terminates this
Agreement due to a breach of any provision by Webmaster, Webmaster
shall not be entitled to receive any further commissions or payments,
including commissions earned prior to the date of termination. SITE
also reserves the right to block any Webmaster site that violates any
of the above-stated terms, or which, in SITE's sole discretion, it
deems objectionable or offensive, or otherwise violates a law or term
of this Agreement. Terminated Webmaster accounts cannot reapply to the
Program without the SITE's express written consent. Should any law
enforcement agency, Internet service provider, or other person or
entity provide SITE with notice that Webmaster or Webmaster's SITE has
engaged in transmission of unsolicited e-mails or has otherwise engaged
in unlawful conduct or conduct in violation of said service provider's
terms of service, we reserve the right to cooperate in any
investigation relating to your activities, including but not limited to
disclosure of your account information in connection therewith. B.
Webmaster's Right to Terminate: Webmaster shall have the right to
terminate this Agreement upon providing thirty (30) days written
notice, however Webmaster shall only receive its designated portion of
revenue for customer rebills for a period of three (3) months from the
date of termination of this Agreement. Customer rebills are only
payable if the orders are not canceled or returned.
16. DISCLAIMERS
Webmaster shall remain solely responsible for the operation of its own
SITE, and SITE shall remain solely responsible for operation of the
Program. SITE has no responsibility for the development, content,
operation and maintenance of Webmaster's SITE, or for any Materials
that appear on Webmaster's SITE. Each party acknowledges that the
other's SITE may be subject to temporary shutdowns dues to causes
beyond the operating party's reasonable control.
17. NO WARRANTIES
WEBMASTER EXPRESSLY AGREES THAT WEBMASTER'S USE OF THE SERVICES IS AT
WEBMASTER SOLE AND EXCLUSIVE RISK. THE SERVICES ARE PROVIDED ON AN "AS
IS, WITH ALL FAULTS" AND "AS AVAILABLE" BASIS. SITE EXPRESSLY DISCLAIMS
ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. SITE MAKES NO WARRANTY
THAT THE SERVICES WILL MEET WEBMASTER REQUIREMENTS, OR THAT THE
SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES
SITE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE
USE OF THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY
INFORMATION OBTAINED THROUGH THE SERVICES OR THAT DEFECTS IN ANY
SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED. WEBMASTER
UNDERSTANDS AND AGREES THAT ANY USE WEBMASTER MAKES OF ANY MATERIAL
AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE
SERVICES IS AT WEBMASTER'S OWN DISCRETION AND RISK, AND THAT WEBMASTER
WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO WEBMASTER'S COMPUTER
SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL
AND/OR DATA.
18. INDEMNIFICATION
Webmaster agrees to defend, indemnify, defend, and hold SITE and its
affiliates, successors, assigns, officers, employees, agents,
directors, shareholders and attorneys, harmless from and against any
and all claims and liabilities, including reasonable attorneys' and
experts' fees, related to or arising from (a) any breach of Webmaster's
covenants under this Agreement; (b) Webmaster's use (or misuse) of the
Services; (c) all conduct and activities occurring under Webmaster's
user ID and password; (d) any item or service sold or advertised in
connection with Webmaster Content or Webmaster's information and data;
(e) any defamatory, libelous or illegal material contained within
Webmaster Content or Webmaster's information and data; (f) any claim or
contention that Webmaster Content or Webmaster's information and data
infringes any third party's patent, copyright, trademark, or other
intellectual property rights or violates any third party's rights of
privacy or publicity; (g) third party access or use of Webmaster
Content or Webmaster's information and data; (h) any claim related to
Webmaster's website; or (i) any violation of this Agreement. SITE
reserves the right, at its own expense, to participate in the defense
of any matter otherwise subject to indemnification from Webmaster, but
shall have no obligation to do so. Webmaster shall not settle any such
claim or liability without the prior written consent of SITE, which
shall not be unreasonably withheld. The Webmaster understands that SITE
will take drastic measures to protect itself from any legal or civil
litigation including, but not limited to, removing a Webmaster's web
page(s) or SITE(s) from its servers for any reason deemed appropriate
by SITE. Webmaster also understands that SITE will charge, on an hourly
basis, for any and all time spent responding to any third party
complaints, disputes, copyright claims or actions involving Webmaster
or Webmaster's web sites.
19. RELATIONSHIP OF THE PARTIES
The relationship between SITE and Webmaster under this Agreement is
that of independent contractors and neither shall be, nor represent
themselves to be, a partner, franchiser, franchisee, broker, employee,
servant, agent, or representative of the other for any purpose
whatsoever. No party is granted any right or authority to assume or
create any obligation or responsibility, express or implied, on behalf
of, or in the name of, another party or to bind another in any manner
or thing whatsoever.
20. FORCE MAJEURE
Neither party will be held liable for, or will be considered to be in
breach of or default under this Agreement on account of any delay or
failure to perform as required by this Agreement as a result of any
causes or conditions that are beyond such party's reasonable control
and that such party is unable to overcome through the exercise of
commercially reasonable diligence, including but not limited to acts of
God; war, riot, embargoes, acts of civil or military authority, or
terrorism; fire, flood, earthquakes, hurricanes, tropical storms or
other natural disasters; fiber cuts; strikes, or shortages in
transportation, facilities, fuel, energy, labor or materials; failure
of the telecommunications or information services infrastructure;
hacking, SPAM, net congestion, or any failure of a computer, server or
software, including Y2K errors or omissions.
21. NOTICE AND PAYMENT
A. Any notice or payment required to be given under this Agreement may
be provided by email to a functioning email address of the party to be
noticed, or personal delivery by commercial carrier such as Federal
Express or Airborne Express. _B. Either party may change the address to
which notice or payment is to be sent by written notice to the other
under any provision of this paragraph. _C. When Notice is
Effective. Notices shall be deemed effective upon delivery.
Notices delivered by overnight carrier (e.g., United States Express
Mail or Federal Express) shall be deemed delivered on the business day
following mailing. Notices mailed by United States Mail, postage
prepaid, registered or certified with return receipt requested, shall
be deemed delivered five (5) days after mailing. Notices
delivered by any other method shall be deemed given upon receipt.
Notices by email and facsimile transmission, with confirmation from the
transmitting machine that the transmission was completed, are
acceptable under this Agreement provided that they are delivered one
(1) hour after transmission if sent during the recipient's business
hours, or 9:00 a.m. (recipient's time) the next business day.
Either Party may, by giving the other Party appropriate written notice,
change the designated address, fax number and/or recipient for any
notice or courtesy copy, hereunder. _D. Any correctly addressed notice
that is refused, unclaimed, or undeliverable, because of an act or
omission of the Party to be notified shall be deemed effective as of
the first date that said notice was refused or deemed undeliverable by
the postal authorities, messenger, facsimile machine, email server, or
overnight delivery service.
22. JURISDICTION/DISPUTES
This Agreement and all matters arising out of or otherwise relating to
these terms and conditions shall be governed by the laws of the State
of California, excluding its conflict of law provisions. The parties
agree that the United Nations Convention on Contracts for the
International Sale of Goods is specifically excluded from application
to these Terms and Conditions. The parties hereby submit to the
personal jurisdiction of the state and federal courts of the State of
California for resolution of all disputes. Exclusive venue for any
litigation permitted under this Agreement shall be with the state and
federal courts located in Los Angeles County, California.
23. AGREEMENT BINDING ON SUCCESSORS
The provisions of this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto, their respective heirs,
administrators, and successors.
24. ASSIGNABILITY
Neither party may assign this Agreement or the rights and obligations
hereunder to any third party without the prior express written approval
of the other party, which shall not be unreasonably withheld.
25. WAIVER
No waiver by either party of any default shall be deemed as a waiver of
prior or subsequent default of the same of other provisions of this
Agreement.
26. SEVERABILITY
If any term, clause or provision hereof is held invalid or
unenforceable by a court of competent jurisdiction, such invalidity
shall not affect the validity or operation of any other term, clause or
provision and such invalid term, clause or provision shall be deemed to
be severed from this Agreement.
27. INTEGRATION
Except where stated to the contrary herein, this Agreement constitutes
the entire understanding of the parties, and revokes and supersedes all
prior agreements between the parties and is intended as a final
expression of their Agreement. However it may modified or amended by
SITE at anytime. All such modifications or amendments will be posted on
the Terms and Conditions section of SITES PROGRAM. SITE encourages all
Webmasters to check often to stay abreast of any such modifications or
amendments to this agreement. Continued use of the PROGRAM by Webmaster
after said modifications or amendments have been made available
constitutes Webmasters complete acceptance to said modifications and/or
amendments to this agreement. This Agreement shall take precedence over
any earlier documents that may conflict with this Agreement.
28. ATTORNEYS' FEES
In the event any Party shall commence any claims, suits, or formal
legal action to interpret and/or enforce the terms and conditions of
this Agreement, or relating in any way to this Agreement, including
without limitation asserted breaches of representations and warranties,
the prevailing party in any such action or proceeding shall be entitled
to recover, in addition to all other available relief, its reasonable
attorney's fees and costs incurred in connection therewith, including
attorney's fees incurred on appeal.
29. DISCLAIMER
Other than those set forth herein, the parties make no other warranties
or representations including warranties of merchantability or fitness
for a particular purpose. Neither party represents the other. Both
parties have had an opportunity to seek legal counsel of their choice.
30. BINDING AGREEMENT
The parties acknowledge the legally binding nature of this Agreement.
By checking the box next to the "I agree to the conditions outlined in
the terms of service agreement," and clicking the "Submit Info" button
on the SITES signup form, and by supplying the SITE with all the
required information to sign up to the SITE's Program, you are
acknowledging and affirmatively stating that you have read and
understand the terms set forth herein and that you agree to be bound by
the terms and conditions hereof. You hereby adopt the /s/ mark
appearing on the signature line below, as your electronic signature on
this document.
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound
hereby, have each signed this document electronically pursuant to the
E-SIGN Act.
/s/______________________ SITE ___/s/________________________ Webmaster
We Do Not Accept Email Referral Traffic of Any Kind. _
