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WEBMASTER AGREEMENT FOR GAYMIAMIBOYS.COM THIS AGREEMENT is made between GayMiamiBoys.com, herein known as "SITE" and the undersigned Affiliate Member Webmaster, herein known as "WEBMASTER" on the date the on-line Application form is submitted to and approved by SITE. This Agreement is subject to change by SITE at any time in its discretion. You will be provided reasonable notice of any such changes. Any continued performance under this agreement 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). TERMS AND CONDITIONS: WHEREAS, SITE has developed a Webmaster Affiliate Program for GayMiamiBoys.com, and, WHEREAS, Webmaster desires to use the Webmaster's Affiliate Program to develop its Internet presence, subject to the terms and conditions stated herein. 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 the Program to Webmaster and to provide Webmaster with the 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. SITE's materials 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 SITE upon cancellation of the Webmaster's membership or withdrawal from the Program by the Webmaster. The Webmaster shall be solely responsible for all content available on or through its website served by SITE's Services, and shall at all times be subject to the terms of this Agreement. Webmaster further warrants that its SITE and Materials served by SITE's Services will not infringe or contain any content that infringes upon or violates any intellectual property rights, or otherwise violates any applicable law, rule or regulation. SITE shall have no obligations with respect to the content available on or through any participating SITE, including but not limited to, any duty to review or monitor any such content. Thus, Webmaster is solely responsible for the content on Webmaster's site. 2. ENROLLMENT PROCEDURE To begin the enrollment procedure, you must submit a completed SITE Affiliate Program Application form through our Webmaster Website: http://www.gaymiamiboys.com/affiliate/ 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) if unlawful content appears on your site; 2) if your site violates our Acceptable Use Policy found in Section 9 of this agreement; 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) 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. 3. DOMAIN NAME SUBMISSION Webmaster must submit a unique url to identify the site desired for acceptance into the SITE's Program, during the sign up process. The url submitted shall not infringe on any trademark or service mark rights of any third parties. Webmaster shall adhere to the policies and practices of SITE pertaining to the use of certain words and names in subscribing websites and the compliance by websites with United States' intellectual property laws. 4. 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 herein. 5. COMPENSATION AND BENEFITS Compensation and Benefits for the SITE Affiliate Program is listed on the SITE at http://www.gaymiamiboys.com/affiliate/. Webmaster will only obtain commissions on membership signups through CCBill. Webmasters do NOT receive commission on any sales other than CCBill membership signups. 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 Website. Webmaster agrees to check back periodically to review the current compensation and benefits pertaining to this program. 6. IMPLEMENTATION SITE and Webmaster acknowledge that "time is of the essence" in the commencement of this Agreement. SITE will devote all commercially reasonable efforts to provide Webmaster with all necessary content, links, script and promotional materials as soon as reasonably possible. 7. BILLING AND DISBURSEMENT SITE reserves the right to determine the manner in which payments will be processed. Disbursements are generally made two to four times per month for commissions earned during the preceding period. 8. 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 on the Webmaster's web site 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, and can submit proof of age upon request by SITE. Finally, Webmaster represents that each Webmaster web site 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 web site. 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 18 years of age when the content was taken. 9. ACCEPTABLE USE POLICY FOR WEBMASTERS Webmaster agrees to be bound by the following general policies in connection with all content with which SITE promotional materials, links or logos are associated:
10. PROMOTIONAL RESTRICTIONS AND SPAM Webmaster may use any reasonable promotional tool desired, with the following exceptions: A. SPAM. The Webmaster agrees not to use the facilities and capabilities of SITE to solicit the performance of any activity that is prohibited by the CAN-SPAM Act dealing with illegal distribution of Unsolicited Commercial Bulk Email ("UCBE"), commonly known as "spam," nor shall Webmaster forge or use without authorization, any mail header information. Webmaster agrees to the SITE's Spam Policy, which is hereby incorporated by reference. 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 here: www.FTC.gov. 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. 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; (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. 13. 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. D. 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 web site 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. 14. TERMINATION The following termination rights are in addition to the termination rights that may be provided elsewhere in this Agreement. Either party may immediately terminate this Agreement for any reason at any time upon written notice to the other party. 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 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. 15. DISCLAIMERS AND LIMITATIONS 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. 16. 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 NON-INFRINGEMENT. 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. 17. INDEMNIFICATION Webmaster agrees to defend, indemnify, and hold SITE and its affiliates, officers, 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 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; or (h) 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) 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 website(s). 18. 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. 19. 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, or any failure of a computer, server or software, including Y2K errors or omissions. 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. 20. NOTICE AND PAYMENT A. Any notice 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 FedEx or Airborne. 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. 21. 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 Commonwealth of Pennsylvania, 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 Commonwealth of Pennsylvania for resolution of all disputes. Exclusive venue for any litigation or arbitration permitted under this Agreement shall be with the state and federal courts located in in Luzerene County, Pennsylvania. 22. ASSIGNABILITY Neither party may assign this Agreement or the rights and obligations hereunder to any third party or entity. 23. 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. 24. 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. 25. 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. 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. 26. ATTORNEYS 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. 27. 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. 28. BINDING AGREEMENT The parties acknowledge the legally binding nature of this Agreement. By clicking on the "AGREE" button on the SITE, 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. 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.
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