The Adult Web's Premier All-Original Content Affiliate Program
THIS AGREEMENT was made between BangBros.com, Inc. (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 Webmasters 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 (Program) for our Web site, www.BANGBROSONLINE.com, (hereinafter the Web site or SITE), and intends 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. SITEs Materials may not be used in violation of any term contained in this Agreement. Webmasters license to use the Materials shall automatically terminate, and all such rights shall automatically revert to SITE upon cancellation or termination of the Webmasters 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 SITEs 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 SITEs or the Webmasters 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 SITEs 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 Webmasters 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 SITEs various 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 with a similar search engine advertising program. Webmaster further agrees that any such registration, or attempt at registration, by Webmaster will be grounds for Webmasters 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.bangbrosonline.com
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 offers different programs, which are described at http://www2.bangbrosonline.com
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
SITE provides hosting services free of charge to its Webmaster clients. Hosting terms and conditions are posted on the SITE, and may be changed from time to time. By agreeing to this contract, you also agree to any policies or terms applicable to hosting services provided by SITE.
6. BILLING AND DISBURSEMENT
SITE reserves the right to determine the manner in which payments will be processed. Disbursements are generally made once every two (2) weeks for commissions earned during the preceding period. Checks for the pay period from the 1st day of the month to the 15th day of the month are sent out on the 25th day of the month. Checks for the pay period from the 16th day of the month to the end-of-month are sent out on the 10th day of the following month. Webmaster understands and agrees that all Payouts by the SITE to Webmaster, must be cashed within ninety (90) days of such payout's issuance or such will be deemed forfeited by Webmaster to the SITE. Webmaster understands and agrees that any dispute or question Webmaster may have regarding the amount of any Payout(s) must be called to the attention of the SITE within ninety (90) days of the issuance of such payment or all Webmasters rights with respect to such dispute shall be deemed permanently waived by Webmaster. Similarly, in the event that the SITE believes that any payments were made in excess of the amount due to Webmaster, the SITE shall bring such overpayment to Webmasters attention within ninety (90) days of such payment. You further understand and agree that any disputes or questions regarding any and all payments made to you prior to January 14, 2008, must be reported to the SITE no later than March 31, 2008 or all Webmasters rights with respect to such dispute shall be deemed permanently waived by Webmaster. Webmasters can check their revenue statistics by accessing the statistics web page located at http://www.BANGBROSONLINE.com
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 Webmasters 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 Webmasters 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 Webmasters website. Finally, Webmaster represents that Webmasters 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 Webmasters 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 Webmasters 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 SITEs 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 persons 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 SITEs 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 SITEs Terms and Conditions.
* SITE enforces a strict, zero tolerance policy with respect to child pornography. No Webmaster 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, Webmasters account will be deleted and all monies will be forfeited.
* Webmasters website must contain all information required by 18 U.S.C. ??2257.
* Webmasters may not hotlink to any of SITEs images, banners, and/or graphics.
* Webmasters may not solicit or permit any minor to become a customer of the Websites.
* Webmasters agree to indemnify and hold SITE harmless from any and all liabilities, claims, damages (including attorneys fees), threatened or incurred as a result of Webmasters activities.
* SITE shall retain the discretion to interpret, modify, terminate and/or enforce any of the general policies for Webmasters in the SITEs 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 Webmasters 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 users 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 the Birth Date Verifier online age verification form; or, through some other type of online age verification device that complies with the requirements of the Child Online Protection Act, (COPA); 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.
Webmaster agrees not to utilize any false, misleading or infringing metatags tied to the Webmasters 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 SITEs 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 owners behalf.
You may send your Notice of Claimed Infringement to: intellectualproperty@bangbros
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 anothers copyright, according to the procedure set forth in 17 U.S.C. ??512 of the Digital Millennium Copyright Act (DMCA). The SITEs 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 Webmasters 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.
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.
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 Webmasters 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 Webmasters site, along with all content created by Webmaster appearing on the Webmasters 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 partys 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 partys marks; (iii) neither party shall now or in the future contest the validity of the other partys 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 partys 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 partys 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 partys proprietary marks will be subject to that partys prior, written approval.
E. Each party agrees not to use the other partys 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 partys requests as to the use of the other partys proprietary marks and will avoid any action that diminishes the value of such marks. Each partys unauthorized use of the others 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 Webmasters 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.
The following termination rights are an addition to the termination rights that may be provided elsewhere in this Agreement: A. SITEs 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 SITEs 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 SITEs express written consent. Should any law enforcement agency, Internet service provider, or other person or entity provide SITE with notice that Webmaster or Webmasters 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. Webmasters 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.
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 Webmasters SITE, or for any Materials that appear on Webmasters SITE. Each party acknowledges that the others SITE may be subject to temporary shutdowns dues to causes beyond the operating partys reasonable control.
17. NO WARRANTIES WEBMASTER EXPRESSLY AGREES THAT WEBMASTERS 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 WEBMASTERS OWN DISCRETION AND RISK, AND THAT WEBMASTER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO WEBMASTERS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
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 Webmasters covenants under this Agreement; (b) Webmasters use (or misuse) of the Services; (c) all conduct and activities occurring under Webmasters user ID and password; (d) any item or service sold or advertised in connection with Webmaster Content or Webmasters information and data; (e) any defamatory, libelous or illegal material contained within Webmaster Content or Webmasters information and data; (f) any claim or contention that Webmaster Content or Webmasters information and data infringes any third partys patent, copyright, trademark, or other intellectual property rights or violates any third partys rights of privacy or publicity; (g) third party access or use of Webmaster Content or Webmasters information and data; (h) any claim related to Webmasters 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 Webmasters 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 Webmasters 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 partys 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.
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 Florida, 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 Florida for resolution of all disputes. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in Miami-Dade County, Florida.
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.
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.
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.
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. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may conflict with this Agreement.
28. ATTORNEY'S 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 attorneys fees and costs incurred in connection therewith, including attorneys fees incurred on appeal.
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 signup form on the following web page: http://www.BANGBROSONLINE.com
IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each signed this document electronically pursuant to the E-SIGN Act.