Terms of Service
THIS AGREEMENT was made between SCTR Services, LLC a Washington Corporation (BANG.COM) and the undersigned Member Webmaster, (“Webmaster”) on the date the online Application form is submitted to and approved by BANG.COM.
WHEREAS, BANG.COM has developed an Webmaster membership program for its Website, www.BANG.COM, (hereinafter the “Website”) and intends to market its Webmaster membership program, (“the Program”), through various online and traditional media; and,
WHEREAS, Webmaster desires to become a Webmaster member of the Program, subject to the terms and conditions stated herein.
IT IS THEREFORE AGREED AS FOLLOWS:
I. Grant Of Licence And Promotional Rights
BANG.COM agrees to provide Webmaster with the content, links, computer script and other promotional materials that are associated with the Program from time to time, and hereby grants a non-exclusive, restricted license to use such content, links, script and promotional materials for the purposes set forth in this Agreement. Content may not be used in violation of any term contained in this agreement.
Webmaster’s license to use this material shall automatically terminate, and all such rights shall automatically revert to BANG.COM upon cancellation of the Webmaster’s membership or withdrawal from the Program by the Webmaster.
Upon acceptance into the Program, BANG.COM will begin providing users with the information necessary to participate in the Program.
Only content provided by BANG.COM may be used on the Webmaster’s site. Logo’s, graphics or text can be created by the Webmaster.
II. Enrollment Procedure
To begin the enrollment procedure, you will submit a completed BANG.COM Cash Application form through our Webmaster Website:
http://www.BANG.COM/signup.php. 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 good faith and will notify you of your acceptance or rejection. We reserve the discretion to accept or reject applications for any reason including, but not limited to:
1) unlawful content appearing on your site;
2) defamatory, obscene, harassing or otherwise objectionable content appearing you your site;
3) if your site promotes or facilitates illegal activity, or violates the rights of others such as copyright, trademark or other intellectual property infringement;
4) if you encourage password theft or hacking;
5) Your site does not receive a sufficient number of unique hits, or
6) if BANG.COM deems your application or site to be unsuitable for any reason.
This Agreement, and the provisions hereof, shall be in full force and effect commencing on the date accepted by BANG.COM and continuing until terminated by either of the parties in accordance with the Termination provisions set forth infra.
IV. Compensation & Benefits
BANG.COM offers two different programs for its webmaster clients. The Programs and Benefits are described below. Additional promotional befits or restrictions may be implemented from time to time, and notices of such benefits or restrictions shall be conspicuously stated on the Website.
a. 60% Affiliate Program
Webmaster gets paid 60% of all the sales and rebills he generates.
b. Per Signup
Webmaster gets paid $35 for each signup he generates.
BANG.COM and Webmaster acknowledge that “time is of the essence” in the commencement of this Agreement. BANG.COM will devote all commercially reasonable efforts to provide Webmaster with all necessary content, links, script and promotional materials as soon as reasonably possible.
VI. Billing Disbursement
BANG.COM reserves the right to determine the manner in which payments will be processed. BANG.COM currently operates its own billing system. Disbursements are generally made once every two (2) weeks for commissions earned during the preceding period. Webmasters can check their revenue statistics by accessing the statistics web page, access to which will be provided upon acceptance of this agreement.M
VII. Representations & Warranties
Webmaster warrants that Webmaster is the sole owner of any and all necessary rights, title and interest to the website content not provided by BANG.COM, but contained on the Webmaster’s Website such as text, logos, graphics and functional elements. Webmaster further warrants that such content complies with any Acceptable Use Policy (AUP) posted on www.BANG.COM, 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, and can submit proof of age upon request by BANG.COM. Finally, Webmaster represents that each Webmaster 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 identify a records custodian and records address for each image appearing on the Webmaster’s Website.
BANG.COM represents and warrants that any and all content it provides to Webmasters is compliant with Title 18 U.S.C. s. 2257, and that all models depicted thereon are at least 18 years of age. BANG.COM will provide each Webmaster with relevant records custodian information for each content provider used by BANG.COM. BANG.COM 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.
VIII. General Policies For Webmasters
Webmaster agrees to be bound by the following general policies in connection with all content with which BANG.COM promotional materials, links or logos are associated:
• Illegal content is strictly forbidden. Illegal content includes, but is not limited to: child pornography, warez content, scat, coffins, sacrilegious, teen modeling, actual or simulated rape, sexual violence, menstruation, obscenity and/or bestiality. BANG.COM reserves the right to review and/or reject any content affiliation created by Webmaster.
• BANG.COM may not be promoted on any site that encourages password trading or hacking.
• Webmaster may not attempt to cheat, defraud or mislead BANG.COM in any way.
• Any fraudulent, deceptive or unfair transactions or trade practices are strictly forbidden.
• Webmaster shall not engage in any activities that may be harmful to the reputation, image, goodwill or reputation of BANG.COM, including, but not limited to SPAMming, or inappropriate Newsgroups/Usenet postings.
• Violation of the restricted non-exclusive license provided in this agreement is prohibited.
• Webmaster may not use BANG.COM’s material or images to promote other sites.
• Webmaster may not circumvent, or attempt to circumvent, the access screen requiring users to enter their birth date and requiring agreement to the BANG.COM terms & conditions.
• BANG.COM 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.
• Webmaster’s Websites must contain all information required by 18 U.S.C.§2257
• Webmasters may not “hotlink” to any of BANG.COM’s 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 BANG.COM harmless from any and all liabilities, claims, damages (including attorney’s fees), threatened or incurred as a result of Webmaster’s activities.
• BANG.COM shall retain the discretion to interpret, modify, terminate and/or enforce any of the general policies for Webmasters 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.
IX. Promotional Restrictions & SPAM
Webmaster may use any reasonable promotional tool desired, with the following exceptions:
a. NO SPAM. Any form of SPAM is strictly prohibited, and use of SPAM email, Usenet/Newsgroup postings, instant messages, or other forms of SPAM constitutes a material breach of this agreement. Such breach may result in immediate termination from the Program and forfeiture of any further commissions or payments.
b. NO INTELLECTUAL PROPERTY VIOLATIONS. Webmasters are prohibited from engaging in any promotion which would violate the intellectual property rights of any person, group or corporation.
c. 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 promotion.
d. NO TUBE UPLOADS. We handle our own tube uploads to sites, and are not trying to saturate the sites with content or compete against ourselves. Any Webmaster who is found submitting clips to tubes will result in immediate termination of this Agreement and forfeiture of any further commissions or payments.
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.
XI. DMCA Policy
BANG.COM strictly complies with the obligations of the Digital Millennium Copyright Act. All notifications of claimed copyright infringement should be sent to BANG.COM’ Designated Agent: Lawrence G. Walters, Esquire, Weston, Garrou & DeWitt, 455 Douglas Avenue, Suite 2155-31, Altamonte Springs, FL 32714, or via email to Larry@LawrenceWalters.com. Do not sent other inquires or information to the Designated Agent.
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 BANG.COM.
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 banned from the Program.
XII. Electronic Signatures
This Agreement is intended to be governed by the Electronic Signatures Act. By submitting the “BANG.COM Cash Application Form”, Webmaster thereby affixes his or her electronic signature to this Agreement, and thereby manifests assent to all terms contained herein.
XIII. Confidentiality / Privacy
“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; (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, BANG.COM shall be entitled to make any public statement, press release or other announcement relating to the Website without any without the prior written approval of Webmaster.
h. BANG.COM honors the privacy of its Webmaster’s personal information. BANG.COM does not share personal information about its Webmasters with others, except upon court order or subpoena.
XIV. Intellectual Property Rights
a. 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.
b. 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.
c. 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.
The following termination rights are an addition to the termination rights that may be provided elsewhere in this Agreement:
a. Mutual Right to Termination Upon Notice: Either BANG.COM or Webmaster may immediately terminate this Agreement at any time upon written notice to the other party in the event of a breach of any provision of this Agreement by the other party. In the event that BANG.COM terminates this agreement for breach, Webmaster shall not be entitled to receive any further commissions or payments, including commissions earned prior to the date of termination.
b. Webmaster’s Right to Terminate: Webmaster shall have the right to terminate this Agreement upon providing 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.
c. BANG.COM’ Right to Terminate: BANG.COM shall have the right to terminate this Agreement upon discontinuation of the Program by providing thirty (30) days notice to all participating Webmasters. All unpaid commissions shall be paid within 60 days, so long as the orders are not canceled or returned.
XVI. Disclaimers & Limitations
In no event shall either party be liable to the other for any indirect, special, incidental, punitive or consequential damages, including but not limited to, loss of profits, loss of data, loss of business or other loss arising out of or resulting from this Agreement, even if the other party has been advised of the possibility of such damages. The foregoing shall apply regardless of the negligence or other fault of either party and regardless of whether such liability sounds in contract, negligence, tort or any other theory of liability.
Webmaster shall remain solely responsible for the operation of their own site, and BANG.COM shall remain solely responsible for operation of the Program and its sites. BANG.COM has no responsibility for the development, operation and maintenance of your site, or for any materials that appear on your 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.
XVII. Relationship Of The Parties
The relationship between BANG.COM 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.
XVIII. 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. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
XIX. Notice & Payment
a. Any notice or payment required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the following address or mailed by certified, registered or express mail, return receipt requested, or by Federal Express:
SCTR Services LLC, BANG.com
800 Stewart Stewart St
Seattle, WA 98101
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.
XX. Jurisdiction / Disputes
This Agreement shall be governed in accordance with the State of Florida. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Florida including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it. Venue for any litigation arising out of this Agreement shall be in Seminole County, Florida.
XXI. Agreement Binding On Successors
The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, and successors.
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 which may conflict with this Agreement.
XXVI. Attorney Fees
In the event any litigation arising out of this Agreement, the prevailing party shall be entitled to an award of reasonable attorneys fees, including attorneys fees 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, and both parties have had an opportunity to seek legal counsel of their choice.
XXVIII. Binding Agreement
The parties acknowledge the legally binding nature of this agreement. By clicking on the “SUBMIT MY APPLICATION” button on the following web page: http://www.BANG.COM/signup.php you are affirmatively stating that you have read and understand the terms set forth herein and that you agree to be bound by the terms hereof.
XXIX. Prohibited use of funds paid by Bang
Webmaster agrees that any funds or amounts paid by BANG to Webmaster will not be used by Webmaster for any “Prohibited Use,” as such term is defined in this Agreement. For purposes of this Agreement, a “Prohibited Use” is defined as Webmaster using funds or amounts paid by BANG, directly or indirectly, for any of the following purposes or uses:
1. To engage in any act of illegal money laundering, or to support or contribute to any person, organization, or other entity engaging in any act of illegal money laundering;
2. To engage in any act of or planning of terrorism of any type, or to support or contribute to any person, organization, or other entity engaging in or planning any act of terrorism of any type;
3. To engage in or support any type of war or armed conflict between countries or between groups or organizations; or
4. To engage in any or to support in any way any illegal activity of any type, as determined by applicable laws.
In the event that BANG shall discover that Webmaster is using any funds or amounts paid by BANG to Webmaster for any “Prohibited Use,” then Webmaster’s account with BANG will be immediately terminated and BANG will have no obligation to make any future payments to Webmaster.