Last Updated: July 17th, 2017
This is a legally binding agreement between you and the operator of Camlicious.com, including any successor or affiliated company or entity. By clicking on the words “I agree,” “Submit,” or similar syntax, you are electronically signing this agreement, and therefore agree to be bound by and acknowledge your complete acceptance of all the express and incorporated terms of this agreement. If you do not agree to this agreement, you must not use the Camlicious.com website and must not register.
You must be at least 18-years old and have reached the age of majority and legal consent in the jurisdiction in which you live or reside to agree to this agreement. If you do not meet these requirements, you must not register.
This performer agreement is between Flickhouse Media Corp., a Canadian corporation (the “Company”), and you, the performer signing for the website located at www.camlicious.com (the “Performer”).
The Company owns and operates the website located at www.camlicious.com (the “Website”), which provides features that include, live interactive webcam services through a proprietary Web interface and such other services that the Company chooses to offer (the “Platform”).
The Performer is in the business of personally providing live interactive performances on the Internet or through other mediums and/or providing various other services.
The parties therefore agree as follows:
To be eligible to register, the Performer must meet the following requirements:
- The Performer is at least 18-years old and the age of majority where the Performer lives;
- The Performer has the legal capacity to enter into legally binding contracts, is of sound mind and body, is not under the influence of drugs or alcohol, and is acting of the Performer’s own free will;
- The Performer has read, understood, and agrees to be bound by this agreement;
- The Performer has independently evaluated the desirability of participating in the Platform, and the Performer has not relied on any statement other than those set out in this agreement; and
- The Performer owns or has access to a webcam, a computer, and a high-speed Internet connection (collectively, the “requirements”).
To begin the enrollment process, the Performer must submit the following:
- An accurate application found at https://www.camlicious.com/becomeamodel;
- Valid government issued picture identification (in color) for age and identity verification purposes (picture identification may include a driver’s license, passport, voting card, or similar government issued picture identification that contains the Performer’s full legal name and date of birth and the ID expiration date);
- A valid social security number (for tax purposes, USA only); and
- A legible color photo of the Performer holding the photo ID beside the Performer’s face.
Evaluation of Application
- The Company will evaluate the Performer’s application and notify the Performer of acceptance or rejection by email to the email address that the Performer supplied as part of the application. The Performer authorizes the Company to verify the accuracy of the application and government issued identification documents submitted with a third-party verification service and to check the Performer’s identity against government-issued identification.
- The Company may reject the Performer’s application or terminate the Performer’s access to the Platform at any time and for any reason, including if the Company determines in its sole discretion that:
- The Performer is in breach of this agreement;
- The content made available by the Performer is unsuitable for any reason, including where the content consists of material that could be considered unlawful, harmful, threatening, defamatory, libelous, obscene, harassing, or otherwise objectionable; or
- The Performer is conducting commercial activities that do not comply with governing law.
During the registration process, The Performer must create an account by providing the Company with accurate information as prompted by the enrollment form, including a valid email address. The Performer also must choose a password and a username. The username must not be offensive and must not infringe another person’s trademark.
Responsibility for Account
The Performer is responsible for maintaining the confidentiality of the Performer’s password and account. Further, the Performer is responsible for all activities that occur under the Performer’s account. The Performer will promptly notify the Company of any unauthorized use of the Performer’s account or any other breach of security.
Liability for Account Misuse
The Company will not be liable for any loss that may incur as a result of someone else using the Performer’s password or account, either with or without the Performer’s knowledge. The Performer could be held liable for losses incurred by the Company or another person due to someone else using the Performer’s account or password.
Use of Other Accounts
The Performer will not use anyone else’s account at any time.
The Company cares about the integrity and security of the Performer’s personal information. But the Company cannot guarantee that unauthorized persons will never be able to defeat the Website’s security measures or use any personal information the Performer provides to the Company for improper purposes. The Performer acknowledges that the Performer provides the Performer’s personal information at the Performer’s own risk.
Company Proprietary Rights
The Company hereby grants the Performer a nonexclusive, nontransferable license to access the Website, the Platform, and the software for the Performer’s use in accordance with this agreement. The Performer will not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Website.
Intellectual Property Rights
The Website and its entire contents, features, and functionality (including all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement of it) are owned by the Company, its licensors, or other provides of the material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
The Company’s name and logo, the Website’s name and logo, the term CAMLICIOUS, and all related names, logos, product and service names, designs, and slogans are the Company’s trademarks. The Performer will not use these marks without the Company’s advance written permission. All other names, logos, product and service names, designs, and slogans on the Website are the trademarks of their respective owners.
Performer Rights and Duties
- The Performer will provide live interactive performances on the Website through the Platform. The Performer will determine the Performer’s schedule and the methods, details, and means of conducting the Performer’s live interactive performances. The Performer will supply all clothing, make-up, accessories, tools, equipment, and instrumentalities needed to conduct the Performer’s live interactive performances under this agreement.
- The Performer will not appear on camera during a performance with anyone other than a currently-registered Camlicious.com performer, and will not allow anyone else to provide services on the Performer’s behalf. The Performer will not use the Website to promote websites or services other than those maintained by the Company, unless expressly authorized by the Company in writing.
- The Performer will comply with the federal record keeping and labeling requirements codified at 18 U.S.C. §§ 2257–2257A and 28 C.F.R. Part 75. The Performer will obtain and keep all records necessary to demonstrate that the Performer’s submissions comply with 18 U.S.C. §§ 2257–2257A and 28 C.F.R. Part 75, including legible copies of picture identification cards (as defined by 28 C.F.R. 75.1) for each registered performer appearing in the submission on the date of the production of the submission. The Performer will act as the “Custodian of Records” as required by 28 C.F.R. Part 75, and will keep all required records at the Performer’s primary address. The Performer will make available to the Company or any government official, and copy at the Company’s request, all records required to be kept under 18 U.S.C. §§ 2257–2257A and 28 C.F.R. Part 75.
- The Performer is solely responsible for the content the Performer produces while broadcasting. The Company will have no right to, and will not, control the manner or determine the method of accomplishing the Performer’s live interactive performances. The Company will not supervise the Performer’s live interactive performances. While the Company does not require the Performer to participate in any sexually explicit or nude content, the Company recommends that the Performer clearly state the Performer’s limits within the Performer’s profile for the benefit of customers and to avoid misunderstandings.
Through the Platform, the Performer may broadcast, stream, transmit live
The Company does not claim any ownership rights in the Performer Submissions. After making a submission through the Platform, the Performer continues to retain any ownership rights that the Performer may have in the Performer Submissions, subject to the license granted in section 5.3.
The Performer hereby grants the Company, its affiliates, and service providers, and each of their and the Company’s respective licensees a perpetual, nonexclusive, sublicensable, transferrable, worldwide license to use, reproduce, modify, prepare derivative works of, publicly perform, publicly display, and distribute the Performer Submissions through the Website in accordance with this agreement. This license includes the right to use the Performer Submissions to promote and redistribute any part of the Website—and derivative works of it—in any media formats and through any media channels throughout the world. The Performer hereby releases the Company for any acts or omissions regarding the publication, distribution, exploitation, alteration, modification, deletion, storage, or public performance of the Performer Submissions.
Use of Name and Likeness
The Performer hereby grants the Company, its affiliates, and service providers the right to use the Performer’s name and likeness in any manner and in any media, throughout the world, at any time, for advertising and promotional purposes and for any other lawful purpose. The Performer’s name and likeness may appear on websites that contain pornographic content, including content that the Performer might consider obscene, offensive, or otherwise objectionable. The Performer hereby waives any right to inspect or approve the Company’s use of the Performer’s name and likeness.
Moral Rights Waiver
The Performer hereby waives all moral rights in the Performer Submissions that may be available to the Performer in any part of the world, and the Performer states that no moral rights have been asserted.
Statements of Fact
For each Performer Submission the Performer makes through Website, the Performer states that the following facts are accurate:
- The Performer owns or controls all rights in the Performer Submission, and has the right to grant the license and rights granted in sections 5.3 and 5.4 to the Company and its affiliates and service providers, and each of their and the Company’s respective licensees, successors, and assigns;
- The Performer is not submitting any content depicting any person under 18-years old;
- The Performer has complied with and will continue to comply with 18 U.S.C. §§ 2257–2257A and 28 C.F.R. Part 75, including inspecting and keeping all required written documents, including written documents sufficient to confirm that all subjects of the Performer Submission were at least 18-years old at the time of the production of the Performer Submission as required by 18 U.S.C. §§ 2257–2257A and 28 C.F.R. Part 75, and will provide the Company with copies of all required written documents on request;
- The Performer has a signed written consent or release for each identifiable person in the Performer Submission to use their name and likeness to allow inclusion and use of the Performer Submission in the way contemplated by the Website and this agreement; and
- The Performer Submission complies with this agreement, including section 5.7.
The Company is proud to offer the Website as a place where performers can express their creativity. But certain important rules must be respected, or performers may face discipline, including warnings, fines, suspension, account closure, or permanent ban in the Company’s sole discretion. All cam shows, uploaded videos, images, store items, and services must obey the following rules. All performer submissions are subject to removal if found in violation of these rules, or if considered inappropriate at the Company’s discretion. The Company may permanently ban repeat offenders from the Platform.
- No material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
- No Underage Material—real or simulated. Ex.: Sex with dolls, reference to infants, newborns, or children in any way. All actors must be and appear 18-years old or older.
- No Horror/Snuff—The Performer cannot act out someone being killed or maimed.
- No Necrophilia—The Performer cannot have sex with or pretend to have sex with dead people.
- No Blood—The Performer cannot show any blood or simulated blood.
- No Asphyxiation—The Performer cannot suffocate or insinuate altering someone’s breathing in any way. Ex.: Choking, strangulation, hanging by the neck, etc.).
- No Animal Sex/Bestiality—There cannot be anything containing animals. Please make sure there are no animals in any videos or images.
- No Forced Sex/Rape—No rape, whether real or simulated, or use of the term “rape.”
- No Nonconsensual Sex—The Performer cannot show someone having sexual intercourse against their will or without their knowledge. Ex.: They are passed out or sleeping, or pretending to sleep.
- No Hardcore Bondage with Sex—The Performer cannot have someone fully bound (both arms and both legs) and penetrate them in any way. No full bondage with penetration of any kind. If someone has all four limps bound, they cannot be penetrated.
- No Vomit.
- No Scat (feces)—There cannot be any feces or simulated feces.
- Pissing/Peeing (urine)—Urination is permitted but there cannot be any peeing on other people or consumption of urine.
- No Violent Fisting—There cannot be vaginal or anal fisting that a reasonable person would consider excessive.
- No Chloroform—The Performer cannot use or imply using any type of chemical to render someone unconscious.
- No Weapons—There can be no weapons shown. This includes prop/fake weapons.
- No Drugs—No illegal drugs. Please check local laws for what is considered illegal. There cannot be any substances visibly shown in previews, screenshots, or description.
- No Intoxication—Someone cannot be intoxicated during sex in any videos or images. This includes alcohol and all other substances that cause intoxication or can cause someone to be considered as being under the influence.
- No Crushing—There is to be no crushing of any animals. Ex.: Crabs, lobsters, spiders, fish, scorpions, lizards, etc.
- No Kidnapping/Abduction.
- No Excessive Biting—biting that breaks skin.
- No Hypnosis/Mind control.
- No Cannibalism.
- No Racial Content—Racial humiliation, Racial Domination, and Racial slurs are prohibited.
- No discussing or facilitating prostitution-related services with users or other studios or performers.
- No advertising commercial websites that offer live webcam streams or any competing websites. But the Performer may mention the Performer’s own profiles, homepages, and wish lists in connection with the Website.
- No asking for users’ account information or to log in user accounts that do not belong to the Performer.
- No deceiving users of the Website by playing recorded video instead of actually performing live on webcam. If the Performer does, the Company will immediately ban the Performer and the Performer will forfeit any unpaid revenues.
- No harassing, disparaging, defaming, or otherwise interfering with the business or personal lives of other performers, studios, or users.
- No allowing any other person within the scope of the camera view under that person is an approved Camlicious performer.
- No disclosing or publicly releasing the personal contact details of any other studio, performer, or user of the Website without that person’s written consent.
- No cheating the Company out of compensation generated from the Performer Submissions.
- No interfering with the creation of performer submissions by other studios or models or otherwise interfering with the duties owed by others to the Company.
- No violating the intellectual property, privacy, or publicity rights of the Company or any other person.
- No depicting, promoting, or facilitating illegal activities of any kind, including prostitution and human trafficking.
- No requesting or receiving monetary payment from users outside of the Website’s payment system during this agreement.
- Any attempt at fraud (that is, working together with a user or “hacker” to accept credits paid for with stolen credit cards) will result in a permanent ban, without payment. The Performer must report all suspicious activity to the Company. The Company may consider the Performer complicit in fraud if the Performer fails to report suspicious activity.
- Nudity is customary, but not required for Performer Submissions.
Monitoring and Enforcement
- The Company may do any of the following:
- Remove or block any performer submission or performer for any reason or no reason in the Company’s sole discretion;
- Take any action with respect to any performer submission that the Company considers necessary or appropriate in its sole discretion, including if the Company believes that the Performer Submission breaches this agreement, infringes any intellectual property right of any person, threatens the personal safety of users of the Website or the public, or could create liability for the Company;
- Disclose the Performer’s identity or other information about the Performer to any person who claims that the material posted by the Performer violates their rights, including their intellectual-property rights or their right to privacy;
- Take appropriate legal action, including referral to law enforcement, for any illegal or unauthorized use of the Website; or
- Terminate or suspend the Performer’s access to all or part of the Website or the Platform for any reason, including breach of this agreement.
- The Company fully cooperates with law enforcement authorities and court orders requesting or directing the Company to disclose the identity or other information of anyone posting any content on the Website. The Performer hereby waive any claims the Performer might have against the Company—including its affiliates, licensees, and service providers—resulting from any action taken by the Company during or because of the Company’s investigations and from any actions taken as a consequence of investigations by either the Company or law enforcement authorities.
- The Company is not responsible for, does not endorse, and is not liable for any performer submission. The Company cannot and does not review all material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. The Company will not be liable for any action or inaction regarding transmissions, communications, or content provided by any person. The Company will not be liable to anyone for performance or nonperformance of the activities described here.
- Within certain limits, the Performer may set the price at which the Performer Submissions will be sold. The Performer will receive a gross revenue share of 50% of the revenues generated from webcam chats and tips and 60% of the revenues generated from the sale of the Performer’s shop items. The Company will deduct from the Performer’s revenue share any applicable sales taxes (including Value Added Tax).
- The Performer will receive a weekly statement showing the Performer’s earnings for each billing cycle. The Performer can download the weekly statement from the payout section of the Website. The first pay period is from the 1st to the 7th day of the month (inclusive), the second pay period is from the 8th to the 14th day of the month (inclusive), the third pay period is from the 15th to the 21st day of the month (inclusive), and the fourth pay period is from the 22nd to the last calendar day of the month (inclusive).
- The Company will issue payments to the payment method that the Performer selected in the Performer’s account settings. Each of the offered payment methods requires a different minimum payout amount to be reached before payment may be issued, generally $50 USD (or $100 USD for wires). If the aggregate balance of funds generated by the Performer does not reach the minimum amount required for the selected payment method, the Performer’s account balance will continuously carry over into the next pay period, until the mandatory minimum amount for payout is met. If the Performer provides the Company with incorrect payment details, any fees for chargebacks resulting from the incorrect payment details will be offset against any amounts otherwise payable to the Performer.
- The Company may adjust or deduct the number of credits transferred to the Performer for any reason, at any time, without advance notice, including retroactively. The most common reasons for credit transfer adjustments include refunds, fraud, breach of this agreement (including Performer conduct violations), and technical errors.
- If the Performer disputes any payment made by the Company, the Performer will notify the Company in writing no later than 15 days after the disputed payment. Failure to notify the Company within this period will result in the Performer’s waiver of any claims related to the disputed payment.
- If the Performer breaches this agreement, violates any third-party right, including copyright, property, or privacy right, or whether a third party claims that all or any part of a Performer Submission caused damage, the Company may indefinitely withhold payments to the Performer.
- The Performer acknowledges that the Company may retain indefinitely information the Performer submits to the Company, including the Performer’s identification, in case the information is needed to comply with applicable law, including 18 U.S.C. §§ 2257–2257A and 28 C.F.R. Part 75, or in a good-faith belief that preservation or disclosure of the Performer’s information is reasonably necessary in the Company’s opinion to (a) comply with legal process, including civil and criminal subpoenas, court orders, or other compulsory disclosure; (b) enforce this agreement; (c) respond to claims of a violation of the rights of third parties, regardless of whether the third party is a user, individual, or government agency; or (d) protect the rights, property, or personal safety of the Company, the Website’s users, or the public.
- The Performer acknowledges that despite its efforts to secure the Website, third parties may still be able to access, record, possess, or distribute the Performer Submissions.
- Unless the Performer requests the Company not to in writing, the Company may use details of the Performer’s visits to the Website, including traffic data, location data, weblogs, IP addresses, and other communication data and the resources that the Performer is accessing for advertising, market research, and to configure the Platform to better suit resource requirements.
During this agreement and for two years after its termination, the Performer will not take any action that is intended, or would reasonably be expected, to harm the Company or its reputation or that would reasonably be expected to lead to unwanted or unfavorable publicity to the Company. But nothing will prevent the Performer from making any truthful statement in connection with any legal proceeding or investigation by the Company or any governmental body.
Termination on Notice
Either party may terminate this agreement at any time by notifying the other party.
Termination by Company
The Company may block, suspend, disable, or terminate the Performer’s access to the Website or the Platform if the Company determines, in its sole discretion, that the Performer (a) breached this agreement; (b) engaged in fraudulent, illegal, or suspicious activity; or (c) otherwise engaged in conduct that would tend to damage the Company’s reputation and goodwill.
Effect of Termination
On termination, the Performer’s right to access the Website and the Platform and all licenses granted by the Company terminates. Any part of this agreement that imposes an obligation after termination will survive the termination, including all disclaimers and limitations of liability.
- The Company is not making any guarantee of profitability or about the amount of money the Performer will earn under this agreement. The Performer acknowledges that past performer earnings does not guarantee or suggest similar future earnings.
- The Performer assumes sole responsibility for all risks, consequences, and damages resulting from the Performer’s interaction and association with the Website, including risks associated with the publicity of appearing on the Website, the risk of recording, piracy, or unauthorized dissemination of the Performer Submissions, or the risk of publication of the identity of the Performer, including the publication of the Performer’s personal information.
- The Performer acknowledges that the Website allows the Performer to interact with the Website’s end users, and that the Company does not screen or monitor the interactions between performers and end users. The Performer acknowledges that the Performer may be exposed to content or conduct that is offensive, abusive, illegal, indecent, obscene, harassing, defamatory, libelous, slanderous, or otherwise objectionable. The Company is not responsible or liable for what an end user says or does on the Website.
- The Company is not making any warranty—express or implied—that
- The use of the Website or the Platform will be timely, uninterrupted, or error-free (whether as a result of technical failure, acts or omissions of nonparties, or other causes) or will operate in combination with any other hardware, software, system, or data;
- The Website or the Platform will meet the Performer’s requirements or expectations;
- The Website or the Platform will be accurate or reliable;
- Errors or defects in the Website or the Platform will be corrected; or
- The servers that make the Website or the Platform available are free of viruses or other harmful components.
- The Company offers the Website and the Platform “as is.” The Company is not making any warranty, either express or implied, including implied warranty of merchantability, fitness for a particular purpose, title, privacy, and noninfringement for the Website or the Platform. No advice or information, whether oral or written, obtained from the Company, the Website, or elsewhere will create any warranty not expressly stated here.
Limit of Liability
- The Website or the Platform may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. The Company will not be liable for any delays, delivery failures, or other damage resulting from these problems.
- The Company will not be liable to the Performer for any of the following:
- Errors, mistakes, or inaccuracies of the Platform or the Website;
- Personal injury or property damage resulting from the Performer’s access to or use of the Website;
- Content (including user contributions) or conduct that is infringing, inaccurate, obscene, indecent, offensive, threatening, harassing, defamatory, libelous, abusive, invasive of privacy, or illegal;
- Unauthorized access to or use of the Company’s servers and any personal or financial information stored in them, including unauthorized access or changes to the Performer’s account, the Performer Submissions, transmissions, or data;
- Interruption or cessation of transmission to or from the Website;
- Denial-of-service attack or distributed denial-of-service attack (DDoS);
- Bugs, viruses, Trojan horses, malware, ransomware, or other disabling code that may be transmitted to or through the Website by any person or that might infect the Performer’s computer or affect the Performer’s access to or use of the Platform, the Website, or the Performer’s other services, hardware, or software;
- Incompatibility between the Platform or the Website and the Performer’s other services, hardware, or software;
- Fraudulent purchases;
- Any delays or errors generated by the acts or omissions of third parties such as banks, payment processors and third-party vendors;
- Delays or failures the Performer might experience in starting, conducting, or completing any transmissions to or transactions through or with the Website; or
- Loss or damage incurred because of the use of any content posted, emailed, sent, or otherwise made available through the Website
- The Company will not be liable to the Performer for breach-of-contract damages that the Company could not reasonably have foreseen on entry into this agreement. The Company also will not be liable to the Performer—regardless of theory of liability and even if the Performer advised the Company of the possibility of these damages—for damages for any of the following: (a) personal injury; (b) pain and suffering; (c) emotional distress; (d) loss of use; (e) loss of services; (f) loss of profits; (g) loss of revenue; (h) loss of goodwill; (i) loss of contracts; (j) loss of data; (k) loss of privacy; (l) loss of business or opportunity; or (m) cost of obtaining substitute services related to the Website or the Platform.
- Except as stated in section 13, neither party will be liable to the other party for indirect, incidental, special, statutory, exemplary, or punitive damages arising from or relating to this agreement, regardless of theory of liability and even if that party has been advised of the possibility of these damages, including loss of revenue or anticipated profits or lost business.
- The Company’s total cumulative liability to the Performer will not exceed the greater of (a) the total amount owed to the Performer under this agreement and (b) $500.
Scope of Disclaimers and Limitations
The disclaimers and limits stated in sections 10 and 11 apply to the greatest extent allowed by law, but no more. The Company does not intend to deprive the Performer of any mandatory protections provided to the Performer by law. Because some jurisdictions may prohibit the disclaimer of some warranties, the limitation of some damages, or other matters, one or more of the disclaimers or limitations might not apply to the Performer.
The Performer will pay the Company for any loss of the Company’s that is caused by the Performer’s actual or alleged:
- Use of the Platform or the Website;
- Dispute with any customer (i.e., end user), performer, studio, or other person;
- Breach of this agreement;
- Infringement of third-party intellectual property rights or violation of any other third-party rights;
- Violation of applicable law;
- Tortious conduct; or
- Criminal conduct.
But the Performer is not required to pay if the loss was caused by the Company’s intentional misconduct.
- “Loss” means an amount that the Company is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
- A loss is “caused by”an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.
Company’s Duty to Notify
The Company will notify the Performer before the 15th business day after the Company knows or should reasonably have known of a claim for a loss that the Performer might be obligated to pay. The Company’s failure to give the Performer timely notice does not terminate the Performer’s obligation, except to the extent that the failure prejudices the Performer’s ability to defend the claim or mitigate losses.
Legal Defense of a Claim
The Company has control over defending a claim for a loss (including settling it), unless the Company directs the Performer to control the defense. The Performer and the Company will cooperate with each other in good faith on a claim.
The Company’s rights under this section 13 do not affect other rights that the Company might have.
Either party may elect to litigate the following type of case or controversy: (a) an action seeking injunctive relief, or (b) a suit to compel compliance with this section 14.
Each party will give the other a reasonable opportunity to comply before it claims that the other has not met the obligations under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties arising out of this agreement or relating to the subject matter of this agreement. The party raising a dispute will submit to the other party a written notice and supporting material describing all issues and circumstances related to the dispute (a “dispute notice”). A primary representative designated by each party will try to resolve the dispute.
If the parties’ primary representatives are unable to resolve the dispute no later than 30 days after receiving the dispute notice, either party may, by notice to the other party and the American Arbitration Association, demand mediation under the Commercial Mediation Rules of the American Arbitration Association. Mediation will take place in Oakland County, Michigan. The mediation will be conducted in the English language. Each party will bear its own costs in mediation, and the parties will share equally between them all third-party mediation costs unless the parties agree differently in writing. Each party will participate actively and constructively in mediation proceedings once started and will attend at least one joint meeting between the mediator and the parties. Any party may terminate mediation at any time after an initial meeting between the mediator and the parties.
- If the parties cannot settle a dispute through mediation, the parties will settle any unresolved dispute arising out of or relating to this agreement, or the breach of it, by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, enforceability, or formation of this agreement, including any claim that all or any part of this agreement is void or voidable.
- A single arbitrator will preside over the arbitration and issue a final award on all issues submitted to the arbitrator. The arbitrator may grant whatever relief that would be available in a court at law or in equity, except that the arbitrator will not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
- Arbitration will take place in Oakland County, Michigan. The parties will bear equally the costs of arbitration, including the fees and expenses of the arbitrator, and each party will bear the costs associated with its case, except the arbitrator will award costs and fees to the prevailing party in accordance with section 14.7.
- Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
The Performer acknowledges that breach by the Performer of the Performer’s obligations under this agreement could cause irreparable harm for which damages would be an inadequate remedy. If any breach occurs or is threatened, the Company may seek an injunction, a restraining order, or any other equitable remedy, in each case without posting a bond or other security.
Jurisdiction and Venue
- If a party brings any proceeding seeking an injunction, a restraining order, or any other equitable remedy to which that party is entitled under this agreement, that party will bring that proceeding only in the United States District Court for the Eastern District of Michigan or in any state court in Michigan, and each party hereby submits to the exclusive jurisdiction and venue of those courts for purposes of any proceeding.
- Each party hereby waives any claim that any proceeding brought in accordance with section 14.6(a) has been brought in an inconvenient forum or that the venue of that proceeding is improper.
Recovery of Expenses
In any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses. For purposes of this section 14.7, “prevailing party” means, for any proceedings, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
Jury Trial Waiver
Each party hereby waives its right to a trial by jury in any proceedings arising out of or relating to this agreement. Either party may enforce this waiver up to and including the first day of trial.
Class Action Waiver
The parties will conduct all proceedings to resolve a dispute in any forum on an individual basis only. Neither the Performer nor the Company will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. The parties will not combine any proceeding with another without the advanced written consent of all parties to all affected proceedings.
Limited Time to Bring Claims
A party will not bring a claim arising out of, or related to the subject matter of, this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
This agreement and the Terms of Service Agreement constitute the entire agreement of the parties with respect to the subject matter of this agreement. It supersedes all earlier written or oral discussions, negotiations, proposals, undertakings, understandings, and agreements between the parties concerning the transactions contemplated in this agreement. If any conflict or inconsistency exists between this agreement and the Terms of Service Agreement, this agreement will govern.
The Company may change this agreement on one or more occasions, on condition that changes will not apply to ongoing disputes or to disputes arising out of events occurring before the posted changes. The Company will notify the Performer through the Website or by email of any changes to this agreement. Changes will become effective when posted on this page. It is the Performer’s responsibility to check this page periodically for changes to this agreement. If the Performer continues to participate in the Platform after any change, the Company will consider the Performer’s continued participation as acceptance of the change unless the Performer notifies the Company in writing of the Performer’s disagreement and the reasons for the Performer’s disagreement no later than 15 days after the change. The Company will contact the Performer no later than 15 days after receiving the notice to address the notice and try to reach a mutually amicable resolution. If the Company is unable to resolve the Performer’s disagreement, the Performer’s sole remedy is to terminate the Performer’s participation in the Platform.
Assignment and Delegation
The Company may assign its rights under this agreement without the Performer’s consent. The Performer will not assign any of the Performer’s rights under this agreement, except with the Company’s advance written consent. The Company may delegate any performance under this agreement without the Performer’s consent. The Performer will not delegate any performance under this agreement, except with the Company’s advance written consent. Any purported assignment of rights or delegation of performance in breach of this section 15.3 is void.
The parties may waive any provision in this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition, under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
The parties intend as follows:
- That if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
- That if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;
- That if an unenforceable provision is modified or disregarded in accordance with this section 15.5, then the rest of the agreement will remain in effect as written; and
- That any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
All notices and other communications between the parties will be in writing.
- Sending Notice to Company
The Performer may send notice to the Company by email to email@example.com unless a specific email address is listed on the Website for giving notice. The Company may change its contact information on one or more occasions by posting the change on the Website. Please check the Website for the most current information for sending notice to the Company.
- Sending Notice to Performer
The Performer consents to receiving any notice from the Company in electronic form either (1) by email to the email address listed in the Performer’s account or (2) by posting the notice on a place on the Website chosen for this purpose. The Performer may change the Performer’s contact information on one or more occasions by updating the contact information in the Performer’s account.
The Company will consider an email notice received by it only when the Company’s server sends a return message to the Performer acknowledging receipt. The Company will consider notices sent to the Performer by email received when the Company’s email service shows transmission to the Performer’s email address. All other notices will be effective on receipt by the party to which notice is given, or on the fifth day after mailing, whichever occurs first.
The laws of the state of Michigan—without giving effect to its conflicts of law principles—govern all matters arising out of or relating to this agreement, including its validity, interpretation, construction, performance, and enforcement.
- If a force majeure event prevents a party from complying with any one or more obligations under this agreement, that inability will not constitute a breach if (1) that party uses reasonable efforts to perform those obligations, (2) that party’s inability to perform those obligations is not due to its failure to (A) take reasonable measures to protect itself against events or circumstances of the same type as that force majeure event or (B) develop and keep a reasonable contingency plan to respond to events or circumstances of the same type as that force majeure event, and (3) that party complies with its obligations under section 15.8(c).
- For purposes of this agreement, “force majeure event” means, for any party, any event or circumstance, whether or not foreseeable, that was not caused by that party (other than a strike or other labor unrest that affects only that party, an increase in prices or other change in general economic conditions, a change in law, or an event or circumstances that results in that party’s not having sufficient funds to comply with an obligation to pay money) and any consequences of that event or circumstance.
- If a force majeure event occurs, the noncomplying party will promptly notify the other party of occurrence of that force majeure event, its effect on performance, and how long the noncomplying party expects it to last. From then on, the noncomplying party will update that information as reasonably necessary. During a force majeure event, the noncomplying party will use reasonable efforts to limit damages to the other party and to resume its performance under this agreement.
No Third-Party Beneficiaries
This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
Relationship of the Parties
The parties intend that their relationship will be that of independent contractors and not business partners. This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.
Successors and Assigns
This agreement binds and inures to the benefit of the parties and their respective successors and assigns. This section 15.11 does not address, directly or indirectly, whether a party may assign its rights or delegate its obligations under this agreement. Section 15.3 addresses these matters.
The parties will take any further actions, or sign any further documents, as may be necessary to implement and carry out the intent of this agreement.
The parties may sign this agreement in any number of counterparts. The parties will consider each counterpart an original, and all counterparts, when taken together, will form the same agreement.
The Performer acknowledges that any affirmation, assent, or agreement the Performer sends through the Website or the Platform in response to a prompt binds the Performer. The Performer further acknowledges that when the Performer clicks on an “I agree,” “I consent,” or other similarly worded “button” or entry field using a finger (for touchscreen devices), mouse, keystroke, or other computer device, this action is the legal equivalent of the Performer’s handwritten signature and binds the Performer in the same way.
The parties have signed this agreement voluntarily and for valid reasons. The parties acknowledge that they (1) have carefully read this agreement, (2) discussed it with their attorneys or other advisors, (3) understand all the terms, and (4) will comply with it. The parties have relied on the advice of their attorneys or other advisors about the terms of this agreement and waive any claim that the terms should be construed against the drafter.
Each party acknowledges that in signing this agreement, that party does not rely and has not relied on any statement by the other party or its agents, except those statements contained in this agreement.
Permission to Send Emails to the Performer
The Company encourages the Performer to give feedback about the Company, the Website, or the Platform. But the Company will not treat as confidential any suggestion or idea the Performer gives, and nothing in this agreement will restrict the Company’s right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to the Performer.
The Company has drafted this agreement in the English language. No translation into any other language will be used to interpret or construe this agreement. All services, support, notices, designations, specifications, and communications will be provided in English.
- In this agreement, the following usages apply:
- Actions permitted under this agreement may be taken at any time and on one or more occasions in the actor’s sole discretion.
- References to a statute will refer to the statute and any successor statute, and to all regulations promulgated under or implementing the statute or successor, as in effect at the relevant time.
- References to numbered sections in this agreement also refer to all included sections. For example, references to section 6 also refer to 6.1, 6.1(a), etc.
- References to a governmental or quasi-governmental agency, authority, or instrumentality will also refer to a regulatory body that succeeds to the functions of the agency, authority, or instrumentality.
- “A or B” means “A or B or both.” “A, B, or C” means “one or more of A, B, and C.” The same construction applies to longer strings.
- “Including” means “including, but not limited to.”