Performer Agreement
This Performer Agreement ("Agreement") between (“I”, “me” or “Performer”) and JazzyCams.com (the “Site”), a West Virginia Company shall be effective immediately as of today’s date (the "Effective Date").
Performer desires to engage the Site to perform certain services on behalf of Performer; and subject to the terms and conditions set forth in this Agreement, the Site is willing to provide such services to Performer. In consideration of the intent of the parties, the terms, conditions, rules, & agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. REPRESENTATIONS AND WARRANTIES.
I, , hereby warrant that my date of birth is 08/15/1999. I warrant that I am at least eighteen (18) years of age or the age of majority in my location, whichever is higher (the “Age of Majority”). I warrant that all of the identification information that I have previously provided, am currently providing or that I will provide in the future to the Site is true, correct, current. I warrant that all identification information is validly issued government identification, that it contains my actual date of birth and that the identification contains a recent, recognizable photo of me. I acknowledge that I will update my identification information before its expiration or and promptly after changing the jurisdiction from which I receive my identification information. My digital signature at the bottom of this document acknowledges and certifies that the above information, information already provided, and information to be provided to the Site is correct. I acknowledge and agree that I am entering into this Agreement knowingly of my own free will as a consenting adult. I represent and warrant that I have the authority and capacity to enter into this Agreement on my own behalf, and I am functioning as a business and not a consumer.
2. E-COMMERCE SERVICES.
Performer hereby agrees that Performer is a customer of the Site. Performer agrees to purchase, and the Site agrees to provide, the Site's Services in connection with Performer's chat based services and live camera personal performances on the Site. Performer hereby grants the Site the right and license to display and broadcast the Performer through the Site. There is no agency, partnership, independent contactor, joint venture, employee-employer or franchiser-franchisee relationship intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party in any manner whatsoever. Performer shall not make any representation, warranty, or agreement on behalf of the Site or its affiliated entities to or for the benefit of any person or entity.
3. NO OBLIGATION.
I understand that I have no obligation to appear on the Site at any time whether in private chat sessions, for tips or otherwise. I understand that I shall be in sole control of when I access the Site. I understand that I am in full control of how I use the Site, including ensuring that my uses of the Site at all times conforms with applicable local, state and federal law, as well as the Site’s acceptable use policies. I acknowledge and agree that all services provided by me, including but not limited to, live streaming video, private chat and similar services (all such material, services and any other material produced by Performer pursuant, in whole or in part, to this Agreement, whether or not of an adult nature, are referred to herein as the “Services”) shall be for the benefit of the Site’s Users. I acknowledge that I am responsible for paying all taxes from monies paid to me by Users who choose to provide tips to my User account with the Site. I warrant to Site that my performance of the Services will not violate any laws in the location in which the Services are performed or exhibited. I acknowledge that the Services may be posted on the Site and that anyone over the Age of Majority in his or her location may be able to access and view my Services.
4. RULES FOR PERFORMERS.
I agree to adhere to the Rules for Performers ("Rules") while performing the Services for Users of the Site. The Rules include:
a. Performer must be at least 18 years old -AND- anyone appearing on camera with Performer must be at least 18 years old.
b. Performer shall not appear on camera with any other person until after that other person has registered with the Site as a Performer and that person’s performer account has been approved. Permission from the Site will be contingent on such third party being age verified and signing an agreement with the Site.
c. Performer's webcam must be live. Video recordings or static photos are not allowed.
d. Cams must have activity. Performer must appear on camera substantially the entire time that Performer is performing the Services. There must be an active, live performer in front of the camera. If Performer wishes to walk away from camera view for more than 60 seconds or to sleep, performer will turn off the camera and camera feed.
e. The posted photo must match the performer(s) in the broadcast.
f. Performer must have a working microphone and communicate with the visitors.
g. Performers are not allowed to advertise any other websites or distribute any spam. Performer shall not promote or discuss any third party or website which is not the Site or which has not been approved in writing by the Site.
h. Performer cannot use more than cam account from the Site at a time.
i. Performer cannot simultaneously use a cam account from different sites.
j. Performer's selected category or categories must accurately represent the Performer. i.e.: "Females" for females appearing alone on camera only, or (ii) "Couples" for male+female, female+female, or male+male.
k. Performer will not participate in, simulate, tell an individual or lead an individual to believe that Performer will participate in any obscene, illegal, or prohibited acts (collectively "Prohibited Acts"). Prohibited Acts include, but are not limited to those involving:
- minors or unauthorized persons
- rape or incest
- bestiality or pets
- illegal drugs (including marijuana)
- unsafe activity (including violence, blood, torture, asphyxiation)
- piss, scat, vomit or menstrual excreta
- sleeping, passed out, or deceased persons.
l. If, at anytime, Performer feels that someone is requesting Performer to engage in an act in violation of this Agreement, the Site’s acceptable use policies, or applicable law, Performer shall cease to perform the Services for the individual and Performer will immediately report that person’s information to the Site.
m. Performers will not hold themselves out to be under the Age of Majority. In the event that someone believes Performer is under the Age of Majority, Performer will immediately tell the person that Performer has reached the Age of Majority.
n. Performer shall not reveal Performer's real name or personal contact information to any individuals while performing the Services. Performer shall not reveal the address location where Performer provides the Services or the names, addresses or other information of any of the companies or individuals connected with the Site or the Services.
o. Performer shall not communicate with any user of the Site through any means other than through the Site without the express written permission of the Site. Performer shall not make cam shows to receive payments through alternative ways (like Skype, Paypal, etc).
m. Performer will not record, capture, or distribute the image, voice, likeness, or actual identification of any Site User other than the performer herself/himself.
n. Performer shall follow and obey the Site's Privacy Policy and Terms of Use.
5. RELEASE AND INDEMNIFICATION.
I (Performer) release the Site, its employees, agents, attorneys, assigns and licensees from any and all claims arising (i) out of this Agreement, or (ii) out of my performance of the Services, or (iii) out of my breach of the Rules for Performers, or (iv) out of my breach of Terms of Use ("Terms") for the Site, or (v) out of my breach of any term or condition of this Agreement, or (vi) out of my breach of the Privacy Policy, including, without limitation, right of publicity claims, invasion of privacy claims, defamation claims, sexual harassment claims, injuries (both physical and emotional), negligence, intellectual property, claims relating to disease or illness (including STD’s), pregnancy, and all other such claims whether or not listed above. Performer agrees to indemnify and hold harmless Site, its employees, affiliates, other related workers, affiliated entities and their successors, assigns, shareholders/members, officers, directors, and applicable third parties (e.g., licensors, licensees, consultants and contractors) (collectively, the "Indemnified Person(s)") harmless against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) I agree that in the event that I appear on camera with any third person, as permitted hereunder, I am doing so at my own discretion and risk and I acknowledge that the Site will not, and is under no obligation to, do any medical testing of such third party.
Except as otherwise provided in this Agreement, after consultation with counsel, Performer hereby waives any and all rights and benefits conferred with respect to all claims within the scope of the releases granted above that are presently unknown or unsuspected. Performer acknowledges that this waiver is a material inducement for entering into this Agreement and that Site would not have entered into this Agreement in the absence of this waiver.
6. Rights Granted to Site.
I hereby grant to Site the right to distribute my Services through any and all media now existing or hereinafter created including without limitation on the Site. I grant to Site the perpetual, universal right to record, edit and exploit my Services for purposes of advertising and promoting the Site on which my Services appear and to promote and advertise my Services and to generally promote the Site and its affiliated entities, including, without limitation, other performers who provide similar services. I authorize others to use my name, any and all stage names and aliases, and biography, resume, signature, caricature, voice and likeness (collectively, the “Name and Likeness”) for and in connection with the provision of the Services on websites owned and/or operated by Site and/or third parties, and all advertising (including the Name and Likeness on websites, banner ads, written publications and the like), merchandising, commercial tie-ups, publicity, and other means of exploitation of any and all rights pertaining to the Services and any element thereof. I agree to sign any and all reasonable documentation requested by Site to perfect the rights granted herein.
7. Termination.
This Agreement may be terminated by either party for any reason whatsoever and shall be effective upon delivery of written notice. Upon termination of this agreement, I will immediately cease using the Site. I understand and agree that the termination of this Agreement shall apply to present and to future services provided by me and will not affect my previous unrestricted grant of rights to the Site, if any, with respect to services previously performed by me. Notice of termination will be sent as follows:
If to Site:
support@jazzycams.com
If to Performer:
In the event that Site determines, in Site’s sole discretion, that I have performed the Services in a way in which such Services are obscene, defamatory, threatening, in violation of applicable law, in anyway in violation of a third party’s rights or otherwise in violation of this Agreement, I understand and agree that Site shall have the right to immediately terminate this Agreement “for cause” and in such event I agree to forfeit any fees, revenue, or tips provided by the Site’s Users to my account but not yet claimed by me.
8. NOTICES.
All notices permitted or required under this Agreement shall be in writing and shall be delivered in person or by courier, sent by facsimile, or mailed by certified or registered mail, postage prepaid, return receipt requested, and addressed to 4858 Water St. Benwood West Virginia, 26031 Attn: JazzyCams.com or to such other address as shall be given in accordance with this Section. If notice is given in person, by courier or facsimile, it shall be effective upon receipt; and if notice is given by mail, it shall be effective upon receipt or three (3) business days after deposit in the mail, whichever is earlier.
9. CONFIDENTIALITY.
Any amounts of consideration, the identity of the Site's users, software, technology, programming, specifications, materials, APIs, guidelines and documentation, or other information designated "confidential" by the Site shall be kept confidential by Performer and shall not be disclosed to any third party except as may be required by any court of competent jurisdiction, governmental agency, or law.
10. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES.
The Performer may not assign, sublicense or transfer its, his or her rights or obligations hereunder (whether by operation of law or otherwise) without the prior written approval of The Site. The Site shall have the right to assign this Agreement without restriction. The terms and conditions of this Agreement, express or implied, exist only for the benefit of the parties to this Agreement and their respective successors and assigns. No other person or entity is or will be deemed to be a third-party beneficiary of this Agreement.
11. DISCLAIMERS.
THE SITE DOES NOT WARRANT THAT THE SITE'S SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR GENERATE ANY INCOME ON BEHALF OF PERFORMER OR ANY PERFORMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SITE EXPRESSLY DISCLAIMS (ON BEHALF OF ITSELF AND ITS AFFILIATED ENTITIES) ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARISING OUT OF PERFORMER'S OR ANY PERFORMER USE OF THE SITE'S SERVICE OR ANY PERFORMER SERVICES PROVIDED BY PERFORMER. FURTHER, THE SITE EXPRESSLY DISAVOWS ANY OBLIGATION TO DEFEND, INDEMNIFY OR HOLD PERFORMER OR ANY PERFORMER HARMLESS IN CONNECTION WITH ANY LAWSUIT OR OTHER PROCEEDING ARISING OUT OF SUCH USE OR THE PROVISION OF ANY PERFORMER SERVICES. If an applicable law(s) prohibits such a disclaimer of warranty, then the any required warranty shall be limited to the minimum warranty period required by law, if no such time period is indicated, then it shall be thirty (30) days from first use.
12. LIMITATION OF LIABILITY.
IN NO EVENT WILL THE SITE OR ANY OF ITS AFFILIATED ENTITIES BE LIABLE TO THE PERFORMER, ANY PERFORMERS OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS ARISING OUT OF PERFORMER'S OR ANY PERFORMER'S USE, OR INABILITY TO USE, THE SITE'S SERVICES, EVEN IF THE SITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PERFORMER FURTHER AGREES TO INDEMNIFY THE SITE AND ITS AFFILIATED ENTITIES AND HOLD THEM HARMLESS FOR ANY AND ALL CLAIMS, DAMAGES, LIABILITIES AND EXPENSES IN THE EVENT THAT PERFORMER OR ANY PERFORMERS OR END USERS FIND THE SITE SERVICES OR PERFORMER SERVICES TO BE OFFENSIVE, HARMFUL, OBSCENE, INACCURATE AND/OR DECEPTIVE. UNDER NO CIRCUMSTANCES SHALL THE SITE'S AGGREGATE LIABILITY TO PERFORMER OR ANY PERFORMER FOR ANY DAMAGES OR CLAIMS OR CAUSES OF ACTION WHATSOEVER, REGARDLESS OF THE FORM OF THE ACTION, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AMOUNT PAID TO THE SITE FOR THE SITE SERVICES, IF ANY, DURING THE NINETY (90) DAY PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH PERFORMER OR PERFORMER FIRST ASSERTS ANY SUCH CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THE SITE MAY ALSO UPDATE THE SITE SERVICES AND RELATED CONTENT WITHOUT INCURRING ANY LIABILITY TO PERFORMER OR ANY PERFORMER.
13. ARBITRATION OF DISPUTES.
For Performer and Site, each one understands and agree that any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration before the American Arbitration Association utilizing one arbitrator in the District of Columbia, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitration proceeding will be limited solely to the dispute or controversy between the parties. The prevailing party shall be entitled to reimbursement for costs and reasonable attorneys’ fees. The determination of the arbitrator in such proceeding shall be final, binding and non-appealable. In such event Performer and Site each shall be limited to the applicable remedy at law for direct damages (after Performer’s and Site’s good-faith efforts to mitigate such damages), if any, and shall not have the right to seek consequential or punitive damages to terminate or rescind this Agreement or to enjoin or restrain in any way the production, distribution, advertising of the Services. PERFORMER ACKNOWLEDGES THAT IT IS GIVING UP ITS RIGHT TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY WITH RESPECT TO ANY SUCH CLAIM. Nothing in this Section shall be deemed to prohibit The Site from seeking an injunction or other equitable relief in any court of competent jurisdiction to protect or preserve its or its licensors' Intellectual Property Rights or rights in or to confidential information and trade secrets.
14. INJUNCTIVE RELIEF.
Performer's sole remedy for breach of any provision of this Agreement shall be an action at law for monetary damages, and in no event shall any Performer be entitled to any injunctive or other equitable relief. The Site may bring an action for injunction or other equitable relief to protect its Intellectual Property Rights or rights in or to confidential information and trade secrets.
15. CHOICE OF LAW, VENUE, AND JURISDICTION.
This Agreement shall be governed by the laws of the District of Columbia, without regard to its conflict of laws, rules or principles. Subject in all respects to the arbitration clause above, Performer and Site irrevocably submit to the jurisdiction of the courts located in District of Columbia and agree that all disputes arising hereunder shall be governed by the laws of the District of Columbia. In the event of Performer’s actual, alleged or threatened breach of the Rules provisions hereof, Site shall be entitled to seek injunctive relief against Performer in any court having competent jurisdiction over such matter.
16. CLASS ACTION WAIVER.
In any dispute, not the Performer, not any performer, no customer, no user, no third party, no entity, and no other person shall be entitled to join actions, consolidate actions, or arbitrate as a representative of a class any claims against the Site, its Agents, Affiliates, Employees, Members, or Officers. Performer acknowledges that they are giving up the right to participate in a class action or representative action with respect to any such claim.
17. REMEDIES ARE CUMULATIVE.
All rights, remedies, undertakings, obligations and agreements contained in this Agreement or available at law, in equity or otherwise, shall be cumulative, and none shall be a limitation of any other remedy, right, undertaking, obligation, or agreement.
18. AGREEMENT BINDING.
This Agreement shall be binding upon the parties and their successors, permitted assigns, heirs, affiliates, directors, shareholders, officers, employees and/or agents.
19. FORCE MAJEURE.
The Site shall not be held responsible for delay or failure in performance hereunder caused by acts of God, natural disasters, terrorism, strikes, embargoes, fires, war, or other causes beyond the affected party's reasonable control.
20. CONSTRUCTION.
The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
21. COUNTERPARTS.
This Agreement may be executed in counterparts, via any means (including facsimile and e-mail), all of which shall be effective, but when taken together shall comprise one agreement.
22. MERGER.
This Agreement, including the Rules, and any accompanying materials including Terms of Use and Privacy Policy, represent the entire understanding between the parties with respect to the subject matter hereof and supersede all previous understandings, written, oral or implied. This Agreement may only be amended with the written or click through consent of the parties, and no oral waiver or amendment shall be effective under any circumstances.
23. AMENDMENT.
The Site reserves the right to amend this Agreement, including any exhibits or addenda, from time to time. In each such instance, Performer will be notified in writing by email and/or posting on a the Site and given the opportunity to accept the changes to this Agreement using a click through agreement or alternate method as otherwise described at the time of the amendment. The Site will not enable Performer to continue to provide Performer Services until Performer has confirmed acceptance of an amendment or modification to this Agreement.
24. SEVERABILITY.
If any provision of this Agreement is found to be unenforceable, the remainder shall be enforced as fully as possible and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as herein expressed.
25. WAIVER.
Failure to enforce any provision of this Agreement shall not constitute a waiver of any term hereof. No waiver of a breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless granted in writing and signed by an authorized representative of the waiving party.
26. Tipping.
I acknowledge that I currently utilize the interactive chat service provided through the Site. I have requested to participate in a tipping program through which the Site will permit other users of the site to provide “tips” in the form of virtual currency to my user account with the Site. Site hereby agrees, so long as Performer is in full compliance with the terms hereof, to permit use of the Site by Performer. I understand that the Site does not guarantee that any tips will be received by me at any time and that all tipping is optional to users, including whether or not to tip and the amount of the tip, although the Site may from time to time allow me to set a minimum tip amount and schedule chat sessions for which I can require a set tip amount. I understand and agree that anyone in any jurisdiction will be able to view my use of the Site.
By signing this Agreement I agree to assign all rights to the Services performed pursuant to this Agreement to the Site. I agree that this Agreement is intended to be governed by the Electronic Signatures in Global and National Commerce Act (the “E-Sign Act”) and that by typing my name below I am intending it to stand in the place of and be equally as binding on me as if I had signed this document manually. I understand that my electronic signature is submitted in accordance with 15 USC section 7001 and that I may retain a paper copy of this transaction for my personal records.
Performer:
Agreed by E-Signature
APPENDIX I - DEFINITIONS.
Terms used in this Agreement or the Payout Schedule (as defined below) shall have the following meanings:
"Agreement" means the Performer Agreement in which Performer engages the site to provide e-commerce services to Performer. Performer is a customer of the Site.
"Chargeback" means the return of funds to a User or other person initiated by a financial institution or service, including, but not limited to, a chargeback or reversal, following a previous payment by User.
"Credit" means the return of funds or other forms of compensation (including, but not limited to, virtual currency such as coins or tokens) to a User or other person, including, but not limited to, an adjustment, credit, refund or return.
"Intellectual Property Rights" means, on a world-wide basis, any and all (a) rights associated with works of authorship, including copyrights, moral rights and mask-work rights; (b) patents, patent rights, patent applications, inventions, designs, algorithms and other industrial property rights; (c) trademarks, service marks, trade names, trade dress, symbols, logos, designs and other source identifiers; (d) trade secret rights and rights in and to confidential or proprietary information; (e) other proprietary and intellectual property rights of every kind and nature, including all applications thereof, however designated, whether arising by operation of law, contract, license or otherwise; and (f) any and all registrations, applications, renewals, records, extensions, continuations, divisions, divisions in part and reissues relating to the foregoing, whether now or hereafter in force.
"The Site" means the websites owned, operated and/or controlled by JazzyCams.com or its participating affiliated entities, or any third-party websites and other media through which the Site distributes the Performers' content through the API or other means.
"The Site's Services" means the services provided to Performer by the Site, including, but not limited to, the (a) marketing and broadcasting of Performers to Users through the Site, and (b) collecting and processing fees paid by Users, directly or indirectly, on the Site.
"Payout Schedule" means the Payout Schedule as amended in its most recent form.
"Policy" means the Site's Rules for Performers, Privcy Policy, and Terms of Use as amended in its most recent form.
"Performer" means a person who appears on the Site, who broadcasts her/his image to Users of the Site, who has executed this Agreement, and who is a customer of the site for the purpose of e-commerce services. For purposes of 18 USC section 2257, as amended, Performer shall be deemed a "performer" and shall be deemed the "primary producer".
"Prohibited Acts" mean those acts which Performer will not participate in, simulate, tell an individual or lead an individual to believe that Performer will participate in. Such acts involve any obscene, illegal, or violent behavior. Prohibited Acts include those acts implying or involving:
- minors or unauthorized persons
- rape or incest
- bestiality or pets
- illegal drugs (including marijuana)
- unsafe activity (including violence, blood, torture, asphyxiation)
- piss, scat, vomit or menstrual excreta
