KB Media Group, Inc. DBA Kinkbomb (hereafter referred to as "Kinkbomb") maintains a website site, www.Kinkbomb.com (Website), to which registered content providers, producers and sellers (hereafter referred to as the "Studio") can upload media in electronic format (Files) for the purpose of allowing Kinkbomb to act as agent for licensing rights to consumers. By registering with Kinkbomb for the purpose of providing content, Studio agrees to the following:
1. Consent.
Studio must be at least 18 years of age to apply for registration with Kinkbomb to provide content. The Studio shall provide sufficient proof that owner , all managing partners and participants of Studio is at least 18 years of age. Furthermore, any and all participants portrayed within any content from the Studio (hereafter known as "Actors") will be at least 18 years of age. Kinkbomb shall not be required to monitor Actors within Studios and it is the sole responsibility of Studio to provide proof of age of all Actors appearing in its content. Kinkbomb may elect at any time and in its sole discretion to monitor any area or records pertaining the Website for compliance with this Agreement or for any other reason.
2. Licensed Materials.
All materials provide by Studio and uploaded to the Kinkbomb website shall be licensed to Kinkbomb for posting by Kinkbomb pursuant to the “Grant of License” set forth in Section 3. All content or Files uploaded to the Kinkbomb server shall constitute “Licensed Materials”. Studio represents and warrants to Kinkbomb that any and all content uploaded by Studio is exclusively owned by Studio and /or that Studio has the full and complete authority to utilize and license the Licensed Materials.
3. Grant of Licenses.
By uploading media content, the Studio agrees to give Kinkbomb irrevocable nonexclusive royalty-free rights to use the Licensed Materials for any purpose including publication, display, modification, and creation of derivative works. Kinkbomb has the right to license any content up until the time the Studio requests the removal or disabling of the file from the Website. The Studio retains the right to revoke licenses to content at any time. This grant of License to Kinkbomb does not effect any transfer of title to the Licensed Materials or any copyright, trademark, patent or other intellectual or proprietary right to Kinkbomb. All copyrights remain the sole ownership of the Studio and the Studio is solely responsible for its intellectual property rights.
4. Distribution of Licensed Materials.
Kinkbomb retains the right to provide royalty-free copies of all content to paying customers who have purchased rights to the content.
5. Copyright.
The copyright of all content uploaded by the Studio is retained by the Studio. The Studio may not upload content to which they do not own the copyrights. Anybody found uploading material that they do not have rights to will have all their studios closed and all funds frozen. While Kinkbomb maintain a ZERO TOLERANCE policy on piracy, Kinkbomb shall have no obligation or requirement to enforce or prosecute copyright violations or any infringement on Licensed Materials.
6. Studio Payment.
The Studio shall be entitled to a fee based on an agreed upon fee schedule. The Studio will have access to records in order to determine the amount of payment it will receive. The Studio acknowledges and agrees that it must earn and collect a minimum of $50 from its Licensed Material(s) as a condition precedent to any payment to Studio. . Compensation may be via Check, Direct Deposit, or Cash Card, upon mutual determination of the parties.
Additional Condition Precedents to Payment:
In order to receive compensation for sales of content, the Studio must remain in good standing with the following terms:
(a) Registration. The Studio represents and warrants that the Studio and all participants have provided Kinkbomb with accurate, complete, and updated registration information while registering and agrees to correct and update that information to ensure its accuracy and completeness at all times.
(b) Account Responsibility. All Studios who register online for Kinkbomb will receive an account and password. The Studio is entirely responsible for any and all activities conducted through his or her account and shall indemnify Kinkbomb for any use of the same The Studio may permit another individual to use the account subject to the Studio's supervision and assumption of all resulting duties, obligations and liabilities. The Studio agrees to notify Kinkbomb immediately of any unauthorized use of the Studio's account or password as well as of any other breach of security.
(c) User Names. Upon the Studios registration as a Studio of Kinkbomb, the Studio may be asked to choose a username to identify the Studios self to other Studio and Kinkbomb staff. the Studio may not select or use a username of another person, or a name which violates any third party's trademark right, copyright, or other proprietary right, which is or may be illegal, which may cause confusion, or which Kinkbomb deems in its discretion to be vulgar or otherwise offensive. Kinkbomb reserves the right in its sole and absolute discretion at any time and without any prior notice to Studio to delete any content for any reason or no reason at all.
(d) Former Studio. Studio whose accounts have been terminated by Kinkbomb may not access their Studio Website in any manner or for any reason without the express written permission of Kinkbomb. The termination of any Studio Account shall be deemed an unequivocal termination and revocation of Studio’s right to utilize Kinkbomb or its website services. Studio acknowledges and agrees that Kinkbomb may terminate Studio at any time without any prior notice. Studio is not granting or conferring any benefit to Kinkbomb, but its grant of license of Licensed Materials, which license shall terminate upon Kinkbomb’s termination of Studio Account. Accordingly, Studio acknowledges and agrees that it shall have no claim or cause of action against Kinkbomb for any termination as no damages shall be sustained by Studio, except for any residual payments remaining pursuant to Section 6. Studio may make no demand for payment until it complies with all conditions precedent. Active Studios may not knowingly allow former Studio who have been terminated to use the active Studio' accounts.
(e) By uploading content such as video media & image files, the Studio warrants that it and its participants are the legal owner and authorized licensors of the copyright thereto.
(f) By uploading content, the Studio warrants that the content does not depict subject matter in a manner that violates any laws, regulations or standards of decency in its community.
(g) By uploading content, the Studio warrants that the uploading was not done with the intent to harass, threaten, embarrass or cause distress, unwanted attention, or discomfort upon another person or entity.
(h) By uploading a model release or otherwise representing that subjects depicted in an image file have consented to publication for whatever purpose, the Studio warrants that the information is complete and accurate.
7. Indemnification.
The Studio shall indemnify, defend and hold harmless Kinkbomb, its officers, directors, employees, partners, associates, affiliates, joint ventures, agents and representatives, from any and all claims based on allegations which, if true, would constitute a breach of any of the foregoing warranties, and any and all liabilities, losses, damages, expenses (including attorneys' fees and costs) and damages in consequence thereof. Kinkbomb reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification, which shall not excuse the Studio's indemnity obligations.
8. Control of Operations.
(a) Kinkbomb, in its sole and absolute discretion, may remove any content uploaded to the Website, including content that may appear to infringe the intellectual property rights of others or that violate any copyrights, laws, or deemed vulgar.
(b) Studio Privacy. Kinkbomb may access and disclose any information about the Studio or any content the Studio provides to the Website if Kinkbomb believes in good faith that such action is reasonably necessary to enforce this Agreement, its copyright policy, to comply with the law and legal process, to operate its systems properly, to protect itself, its Studio, or users.
(c) Kinkbomb reserves the right, but does not assume the responsibility, to restrict conduct which Kinkbomb deems in its discretion to be harmful to individual Studio, damaging to the communities that use Kinkbomb, or in violation of Kinkbomb's or any third party's rights.
9. Disclaimers.
(a) Kinkbomb expressly disclaims all warranties and conditions of any kind, either express or implied, including without limitation any implied warranties or conditions of merchantability, fitness for a particular purpose, non-infringement of third party rights, and those arising from a course of dealing or usage of trade.
(b) Kinkbomb, its licensors, and subcontractors do not warrant any connection to, compatibility with, transmission over, nor results or use of, any network connection or facilities provided (or failed to be provided) through Kinkbomb. From time to time the porting of particular content may not be feasible and Kinkbomb may remove any such content from the Website without any liability to the Studio. The Studio is responsible for assessing its own computer and transmission network needs, and the results to be obtained therefrom.
(c) Kinkbomb assumes no responsibility for any actions or liabilities arising from the possession or use of images, photos, files or software obtained from the Website.
(d) Kinkbomb makes no warranty that service will be uninterrupted, timely, secure, or error free. Kinkbomb makes no warranty as to the use or the results that may be obtained from the use of Kinkbomb.
(e) Kinkbomb makes no warranty with respect to any related software or hardware used or provided by Kinkbomb in connection with the Website. Any patent, copyright, trademark, trade secret or warranty infringements, whether actual or alleged, are the direct responsibility of the manufacturer of said hardware or software product.
10. Limitation of Liability.
The Studio acknowledges that Kinkbomb shall not assume or have any liability for any action by Kinkbomb or its affiliates and licensees with respect to the use of content. To the fullest extent permitted by applicable law, including but not limited to, negligence, Kinkbomb shall not be liable to the Studio for any indirect, incidental, special or consequential damages (including, without limitation, damages or loss of business, lost profits, business interruption, loss of business information, or any other pecuniary loss, even if Kinkbomb has been advised of the possibility of such damages, in connection with Kinkbomb or with any other product or service provided by Kinkbomb , or resulting from the use of or the inability to use the Website or any transaction entered into through or from Kinkbomb , or from unauthorized access to or alteration of the Studios transmissions, data, or account. The Studio specifically agrees that Kinkbomb is not responsible or liable to the Studio or anyone else for any threatening, defamatory, obscene, offensive or illegal conduct or speech of any other party or any infringement or violation of another's rights, including intellectual property rights, rights of publicity, or rights of privacy. Kinkbomb holds no liability to the Studio for breach of this agreement.
11. Termination.
Either the Studio or Kinkbomb may terminate the Studio's account with Kinkbomb at any time with or without cause. the Studio only right with respect to any dissatisfaction with any (i) Agreement term or policy or practice of Kinkbomb in operating the Website, (ii) content available through Kinkbomb or change therein, or (iii) amount or type of fees or billing methods, or change therein, is to terminate the Studio account with Kinkbomb by notifying Kinkbomb support of the desire to terminate by e-mail. Notice of termination will be effective upon receipt by Kinkbomb, or upon receipt of confirmation if confirmation is requested.
12. Impermissible Conduct.
The Studio may not upload content which is unlawful and agrees to use Kinkbomb only for lawful purposes. The Studio may not post to or use Kinkbomb to transmit any content which is deemed by Kinkbomb to be generally offensive to the public or harmful. Any conduct by the Studio that in Kinkbomb's sole discretion restricts or inhibits any other the Studio, person or entity from using or enjoying Kinkbomb or another service will not be permitted and shall entitle Kinkbomb to immediately terminate the Studio's account and close the Studio without notice.
13. Severability.
If any term or provision of this Agreement is found to be unenforceable for any reason, this Agreement shall remain in full force and effect and shall be fully enforceable on its remaining terms and conditions.
14. Arbitration.
A material part of this contract due the nature of the content of the media and privacy concerns of all parties involved is the Agreement to confidential arbitration. Any and all disputes arising out of, under or in connection with this Agreement, with the exception of copyright claims, including without limitation, its validity, interpretation, performance and breach, shall be submitted to arbitration in Las Vegas, Nevada pursuant to the rules of the Arbitration Act (Nevada) and submitted to JAMS alternative dispute resolution systems, at the time arbitration is demanded. Judgment upon any award rendered may be entered in the highest court of the forum having jurisdiction. This Agreement, its validity and effect, shall be interpreted under, and governed by, the laws of the State of Nevada, in the venue of the County of Clark, and the Studio agree that the arbitrators shall award all costs of arbitration, including legal fees, plus legal rate-of-interest to the successful party. Copyright infringement claims shall be brought in the Courts of the State of Nevada. the Studio consent to service of any required notice or process upon the Studio by registered mail or overnight courier with proof of delivery. [INITIAL _________] The Studio agrees and acknowledges that this provision was freely, knowingly and intentionally entered into and not a contract or provision of adhesion. The Studio has equal bargaining position in negotiating this provision and deems the mandatory arbitration requirements as acceptable in its best interest. [_____]
15. Legal Fees and Jurisdiction.
If Kinkbomb is obligated to go to court, rather than arbitration, to enforce any of its rights, or to collect any fees, the Studio agrees to reimburse Kinkbomb for its legal fees, costs and disbursements if Kinkbomb is successful. The Studio agrees that the Courts of the State of Nevada, County of Clark are the agreed and appropriate forums for any such suit, and consent to service of process by registered mail or overnight courier with proof of delivery. [INITIAL____]
16. Entire Agreement.
The Studio ACKNOWLEDGES THAT the Studio HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. This Agreement comprises the entire agreement between Kinkbomb and the Studio, and supersedes any prior agreements. Kinkbomb reserves the right, at its discretion, to revise this Agreement at any time, and such revision shall be effective immediately upon the posting of the revised Agreement at the Website. The Studio agrees to review the Agreement periodically to become aware of such revisions. If any such revision is unacceptable to the Studio, the Studio may terminate the Studio as provided in Section 10. the Studio continued use of Kinkbomb following posting of the revised Agreement on the Website shall be deemed to be acceptance of all such revisions.