Last Modified: April 30, 2020
First Effective: September 6, 2019
This NA-PLUS UPLOADER AGREEMENT (hereafter "AGREEMENT") is applicable to individuals and entities who desire to become UPLOADERS on the NA-PLUS PLATFORM.
This AGREEMENT is made by and between YOU and La Touraine, Inc., a Nevada corporation dba Naughty America ("LTI"). By providing YOUR electronic signature below, YOU acknowledge that YOU have read and agree to be bound by the terms and conditions of this AGREEMENT.
Mandatory Age Restriction.
NO PERSON UNDER THE AGE OF EIGHTEEN (18) YEARS MAY DIRECTLY OR INDIRECTLY PARTICIPATE AS AN UPLOADER ON THE NA-PLUS PLATFORM. YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE CURRENTLY AT LEAST EIGHTEEN (18) YEARS OLD, OVER THE AGE OF MAJORITY IN YOUR COMMUNITY, AND ARE CAPABLE OF LAWFULLY ENTERING INTO THIS AGREEMENT.
III. General Provisions.
3.1 "BROADCAST" shall encompass uploading, offering, selling and renting CONTENT on the NA-PLUS PLATFORM.
3.2 "CONTENT" shall mean original UPLOADER-generated CONTENT, which includes digital images and pre-recorded videos. The UPLOADER must have created the CONTENT or must be licensed to sell or rent such CONTENT on the NA-PLUS PLATFORM.
3.3 "LTI" shall refer to La Touraine, Inc. dba Naughty America, 101 West "A" Street, Suite 900, San Diego, California 92101 and/or its assigns.
3.4 "NA-PLUS PLATFORM" shall refer to the hosting service owned and operated by LTI, which is available at www.naughtyamericaplus.com, including all of its subdomains, any predecessor or successor domains or URLs, where UPLOADERS can BROADCAST their CONTENT and USERS can purchase or rent such CONTENT for downloading or streaming to their personal computers or mobile devices for their personal use.
3.5 "NET PROCEEDS" shall mean the amount of money charged to a USER for the purchase or rental of such CONTENT minus any Payment Processor fees, refunds, or charge-backs incurred on the purchase or rental of such CONTENT.
3.6 "UPLOADER" as well as pronouns such as "YOU", "YOUR", "YOURS" shall refer to the studios, independent models, performers and other content producers who are registered as an UPLOADER with LTI in order to BROADCAST their CONTENT on the NA-PLUS PLATFORM.
3.7 "USERS" shall mean individuals using the NA-PLUS PLATFORM to shop for, purchase, and/or rent videos on demand for downloading and/or streaming for their personal use. By definition, all USERS shall be members of naughtyamerica.com.
B. Binding Agreement.
3.9 Modification. LTI reserves the right to modify the terms and conditions of this AGREEMENT at any time in its sole discretion. Any and all modifications of this AGREEMENT shall become effective immediately upon posting of such modifications on the NA-PLUS PLATFORM or upon notice of such modifications being given to YOU by email to the email address in YOUR NA-PLUS UPLOADER account. Any modified version of this AGREEMENT supersedes any prior version effective immediately upon such posting or notice. The date upon which the initial version of the AGREEMENT became “First Effective” is set forth at the top of this AGREEMENT. The date upon which this AGREEMENT was “Last Modified” is set forth at the top of this AGREEMENT.
3.10 Opt Out. If any modification of this AGREEMENT is unacceptable to YOU, YOUR only recourse is to opt out of such modification by terminating this AGREEMENT and ceasing to use the NA-PLUS PLATFORM. YOUR continued use of the NA-PLUS PLATFORM following the posting or receipt by email of notice regarding a modified AGREEMENT shall constitute YOUR acceptance of such modification.
C. Consent to Receive Email. By entering into this AGREEMENT, YOU agree and consent to receive notifications from LTI about YOUR NA-PLUS UPLOADER account sent to the email address in YOUR NA-PLUS UPLOADER account.
IV. NA-PLUS PLATFORM.
A. NA-PLUS PLATFORM. NA-PLUS PLATFORM is a hosting platform, which contains the hardware and software tools that provide YOU with the ability to upload YOUR original CONTENT to the NA-PLUS PLATFORM to be offered, sold and/or rented to USERS for downloading and/or streaming to their personal computers or mobile devices for their personal use. When a USER purchases CONTENT for downloading, he or she will have a specified number of days to access and download such CONTENT. When a USER purchases CONTENT for streaming, such CONTENT will be available for access and streaming by the USER for a specified number of days. When a USER rents CONTENT for streaming, such CONTENT will be available for access and streaming by the USER for a specified number of days. The USER's ability to access CONTENT for downloading or streaming will be subject to immediate termination if (1) the USER's membership in naughtyamerica.com has expired, (2) YOUR NA-PLUS UPLOADER account has been terminated, or (3) the CONTENT has been taken down for a violation of the terms and conditions of this AGREEMENT.
B. Non-Exclusive License to Use NA-PLUS PLATFORM. By entering this AGREEMENT, YOU acknowledge and agree that LTI grants YOU a free, non-exclusive, non-transferable, personal, and revocable license to use NA-PLUS PLATFORM solely for YOUR purposes. LTI grants this license so YOU may access and use NA-PLUS PLATFORM for its intended purposes. This license should not be construed as a transfer of title.
V. Registration as an UPLOADER.
5.1 Registration. In order to become an UPLOADER, YOU must first submit an application ("Application") to register an NA-PLUS UPLOADER account. The Application will require YOU to PROVIDE the following information and documentation:
(a) Log-in information for YOUR NA-PLUS UPLOADER account, including a display name, valid email address and password;
(b) A profile name to be displayed on YOUR public profile page and in the website URL for YOUR public profile page (YOUR profile name must be unique to YOU, not offensive to others, not confusingly similar to an actor's or celebrity's name, and not in violation of any copyright or trademark);
(c) A profile image to be displayed on YOUR public profile page;
(d) A short biography to be displayed on YOUR public profile page;
(e) YOUR date of birth;
(f) YOUR Social Security Number (SSN);
(g) YOUR gender;
(h) A scan of a government issued photo identification ("Photo ID") that has been issued to YOU with a close-up picture of YOU holding YOUR Photo ID next to YOUR face;
(i) YOUR full legal name;
(j) YOUR full street address or P.O. Box with city, state and zip code for mailing;
(k) YOUR country of residence; and
(l) YOUR mobile phone number.
5.2 Age Verification. The Photo ID and the close-up picture of YOU holding YOUR Photo ID next to YOUR face are necessary to verify your identity and age.
5.3 Evaluation of Application. LTI will evaluate YOUR Application and notify YOU of its acceptance or rejection. If something is missing or otherwise not valid, LTI will contact YOU to validate and/or obtain additional information. YOUR Application may be rejected for any reason, including but not limited to the following: (1) YOU are under eighteen (18) years of age or under the age of majority in your community; (2) YOUR Application is incomplete; (3) YOUR application contains inaccurate or false information. If YOUR Application is accepted, YOU will be registered as an UPLOADER on the NA-PLUS PLATFORM. If LTI later determines that YOUR Application violated any of subsections (1), (2), or (3) hereinabove, YOUR NA-PLUS UPLOADER account will be terminated.
5.4 Revisions of Application. LTI reserves the right to revise the Application and expand upon the amount and type of information and/or documentation required to create or maintain YOUR NA-PLUS UPLOADER account. YOUR failure to complete an updated Application or to submit such additional information and/or documentation when requested may result in the termination of YOUR NA-PLUS UPLOADER account.
5.5 Re-application. If YOUR Application is rejected or YOUR NA-PLUS UPLOADER account is terminated, YOU may re-apply to become an UPLOADER on the NA-PLUS PLATFORM unless LTI provides otherwise.
5.6 Account Confidentiality. YOU agree and represent that YOU will not share YOUR account or login information, nor let anyone else access YOUR account, or do anything else that might jeopardize the security of YOUR account. Should YOU know of or reasonably suspect any security breach, including but not limited to any loss, theft, or unauthorized access or disclosure of YOUR login information, YOU must immediately notify LTI and modify YOUR login information. YOU are solely responsible for maintaining the confidentiality of YOUR login information, and YOU will be responsible for all uses of YOUR login information, including uploads, whether or not authorized by YOU. YOU will be liable for any losses incurred by LTI that flow from the unauthorized use of YOUR account. LTI is not liable for YOUR losses caused by any unauthorized use of YOUR account and YOU hereby expressly waive any such claim and agree to defend, hold harmless and indemnify LTI against any such claims made against it by third parties. In short, YOU are responsible for all conduct and all activities that happen through YOUR account.
5.7 Content Uploaded on Your Account. YOU are solely responsible for all CONTENT BROADCAST through YOUR account, including any personalization made to YOUR profile or YOUR biographical data. Further, YOU understand and agree that YOUR profile and YOUR uploaded CONTENT may be visible or searchable by other UPLOADERS or USERS of the NA-PLUS PLATFORM, through the NA-PLUS PLATFORM itself. Further, YOU understand and agree that YOUR profile and YOUR CONTENT may be searchable by publicly available search engines; if YOU wish to have some or all of YOUR profile and/or CONTENT removed from the publicly available search engines, it is YOUR responsibility to do so by filing such removal requests with the relevant search engine(s) operator(s). Without limiting the foregoing, at all times UPLOADER agrees to hold harmless LTI with respect to any activity made through her/his/its account access, related or not to Content uploaded on UPLOADER’s account.
5.8 Standards of Conduct. YOU represent and warrant that YOU will comply with the following standards (“Standards of Conduct”):
a. YOU will not use the NA-PLUS PLATFORM to offer USERS any CONTENT that is immoral, obscene, defamatory, or in any other way in violation of the law.
b. Only YOU will use YOUR NA-PLUS PLATFORM account and YOU will not allow any third party to access YOUR NA-PLUS PLATFORM account.
c. YOU will not solicit personal contact with USERS. Specifically, YOU will not offer, propose, and/or solicit any escort and/or prostitution services to USERS.
d. YOU will not engage in any fraudulent activity on or through the NA-PLUS PLATFORM, including but not limited to any activity undertaken to deceive, trick, and/or defraud USERS.
e. YOU will not offer CONTENT to any USER under the age of eighteen (18) and/or under the age of majority in the USER’S jurisdiction.
f. YOU will not infringe upon or violate the rights of privacy of, or constitute a libel or slander against, or violate any common law or other rights of, any person or entity.
g. YOU will not use the NA-PLUS PLATFORM to harass or bully any person or entity.
h. YOU will not infringe upon or violate the intellectual property rights, proprietary rights, or any other rights of any person or entity, including but not limited to claims of copyright or trademark infringement, trademark dilution, trade dress infringement, false endorsement, false advertising, unfair competition, misappropriation, violation of moral rights or rights of “droit moral”, or invasion of rights of publicity.
VI. CONTENT Restrictions.
Original CONTENT. All CONTENT uploaded on the NA-PLUS PLATFORM shall be original CONTENT that has either been created by YOU or which has been produced by a third party and assigned or licensed to YOU for commercial distribution to USERS for their personal use.
Prohibited CONTENT. All CONTENT uploaded onto the NA-PLUS PLATFORM shall be subject to the following restrictions:
6.1 No minors: no depictions of minors, real or simulated.
6.2 No violence: no beating, punching, kicking, choking, face slapping, S&M conduct, torture.
6.3 No bondage: no binding, blindfolds, or gags.
6.4 No snuff: no depictions of someone being killed or maimed.
6.5 No rape: no rape, real or simulated, or use of the term "rape."
6.6 No nonconsensual sex: no depictions of someone having sexual intercourse against his or her will or without that person's knowledge (e.g., the person is passed out or sleeping).
6.7 No chloroform: no depictions of someone using any type of chemical or gas to render someone unconscious or semi-unconscious.
6.8 No drugs: no depictions of illegal drugs or someone using or being under the influence of illegal drugs.
6.9 No intoxication: no depictions of someone being under the influence of alcohol.
6.10 No hypnosis: no depictions of someone having sexual intercourse while hypnotized.
6.11 No necrophilia: no sex with dead people, real or simulated.
6.12 No cannibalism: no depictions of someone eating part of a human being, real or simulated.
6.13 No bestiality: no depictions of sex with animals, real or simulated.
6.14 No crushing: no crushing of any animals, reptiles, fish, spiders, or insects.
6.15 No animal cruelty: no harming of animals in any way, real or simulated.
6.16 No incest: no depictions of incest or use of the term "incest."
6.17 No blood: no real blood.
6.18 No menstruation: no depictions of menstruation, real or simulated, or use of the term "menstruation" or "period."
6.19 No vomit: no depictions of vomiting, real or simulated.
6.20 No scat: no depictions of feces, real or simulated; no scat play.
6.21 No urination: no depictions of urination, golden showers, or of someone drinking urine, real or simulated.
6.22 No fisting: no vaginal or anal fisting.
6.23 No biting: no biting that breaks the skin.
6.24 No bukkake: no depictions of multiple men ejaculating on a person.
6.25 No unnatural squirting: no depictions of squirting that is yellow, discolored, excessive, or unnatural.
6.26 No enemas: no depictions of liquid or gas being introduced into the rectum to expel its contents.
6.27 No food: no use of food as a sex object.
6.28 No religious symbols: no crosses, holy symbols, or images of religious figures.
6.29 No religious clothing: no clothing associated with a particular religion or faith.
6.30 No hate speech: no hate speech based on race, color, nationality, ethnicity, sex, religion, gender preference, or disability.
6.31 No hateful content: no depictions of any form of discrimination based on race, color, nationality, ethnicity, sex, religion, gender preference, or disability.
6.32 No trademarks: no recognizable trademarks, logos, or trade dress without licensing agreement.
6.33 No branded products: no trademarked or branded clothing, accessories, or products such as Victoria’s Secret™, Gucci™, Coca-Cola™, Pepsi™, or Apple™ without licensing agreement.
6.34 No tattoos containing identifiable trademarks, logos, trade dress, branded products, religious symbols, or hate speech.
6.35 No background music: no copyrighted music without licensing agreement.
6.36 No TV or computer screens: no TV or computer screens in background unless content blurred out.
6.37 No posters: no posters in background containing images of public figures or celebrities.
6.38 No banners: no flags, banners, or pennants with names or logos of colleges, sports teams, or schools.
C. Depiction of Minors. CONTENT shall not include any depictions of nudity or sexuality by a minor, age inappropriate appearing performers (i.e., performers who look younger than 18 years old), or performers who portray or are made to appear to be a person under the age of eighteen (18) years by virtue of the script, make up, costuming, demeanor, or setting.
LTI HAS A ZERO TOLERANCE POLICY REGARDING PEDOPHILES, PEDERASTS OR ANY PEDOPHILIC, PEDERASTIC, OR SIMILAR RELATED ACTIVITY. LTI TAKES GREAT MEASURES TO ENSURE THAT NO UNDERAGE PERFORMERS APPEAR ON THE NA-PLUS PLATFORM. LTI DOES NOT TOLERATE ANY MATERIAL INVOLVING OR REPRESENTING MINORS, INCLUDING ANY VIRTUAL DEPICTIONS THEREOF. LTI WILL REPORT ANY UNLAWFUL ACTIVITIES TO THE PROPER AUTHORITIES.
D. Forbidden Words. Pursuant to strict guidelines imposed by some credit card companies, YOU are forbidden from using certain words, as described below, in the titles and descriptions of YOUR CONTENT. YOUR use of forbidden words subjects YOUR account to immediate suspension and/or termination.
List of forbidden words:
D. NA-PLUS DMCA Notice & Take Down Policy & Procedure. LTI supports the protection of the intellectual property rights of copyright holders, and it will promptly respond to notices of alleged copyright infringement made in accordance with the Digital Millennium Copyright Act ("DMCA"). Under the DMCA, the NA-PLUS PLATFORM qualifies as a "Service Provider" as defined in 17 U.S.C. § 512(k)(1). As such, LTI is entitled to assert certain protections from claims of copyright infringement, which are commonly referred to as "safe harbor" provisions. As additional protection from any potential copyright infringement liability, LTI has adopted its NA-PLUS DMCA Notice & Takedown Policy & Procedure, as described below, which applies to any and all claims of copyright infringement pertaining to CONTENT that has been uploaded to the NA-PLUS PLATFORM.
NA-PLUS DMCA Notice & Takedown Policy & Procedure:
Notice of Copyright Infringement. If you believe that any Content or Submission appearing on the Site has been used in a manner that infringes upon your copyrights, you or your authorized agent may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
An electronic or physical signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
Identification of the material that is claimed to be infringing or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works on the Site;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the Company to locate the material;
Information reasonably sufficient to permit the Company to contact you, such as your address, telephone number or e-mail address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
LTI’s Copyright Agent is:
110 West A Street, Suite 900
San Diego, CA 92101
International: 1(619) 237-5014
Counter-Notice. If you believe that your Content or Submission that was removed or disabled is not infringing, or that you have proper authorization to post and use the material in your Content, you may send a counter-notice to our Copyright Agent containing the following information:
Your physical or electronic signature;
Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in San Diego, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
Our Copyright Agent may send a copy of any counter-notice to the original complaining party informing that party that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at the Company's sole discretion.
E. Removal. All CONTENT is subject to removal if, in LTI's sole and absolute discretion, it is found to be in violation of this section of the AGREEMENT. Repeat offenders may be permanently banned from the NA-PLUS PLATFORM.
VII. Grants of Licenses.
License to Market. For the term of this AGREEMENT, YOU hereby grant LTI a royalty free, non-exclusive, transferable license to sell and/or rent YOUR CONTENT on the NA-PLUS PLATFORM, and to use YOUR CONTENT to market and promote the NA-PLUS PLATFORM itself. Under this license, LTI shall be entitled to host, run, copy, reproduce, publish, communicate, bundle, distribute, market, create derivative works of, adapt, translate, transmit, arrange, modify, alter, sublicense, export, host, make available or otherwise use YOUR CONTENT, alone or in combination with other works, including, but not limited to, text, data, images, photographs, illustrations, animation, graphics, video, or audio segments and hypertext links, by means of any technology, whether now known or hereafter to become known, for commercial purposes only.
License to Use Likeness. For the term of this AGREEMENT, YOU hereby grant LTI a royalty free, non-exclusive, transferable license to use YOUR likeness, voice, profile name, and biography for promotional and commercial purposes, including the advertisement of naughtyamerica.com, naughtyamericaplus.com, and/or the NA-PLUS PLATFORM.
C. Grant of License to USERS. YOU hereby grant any USER, who purchases or rents YOUR CONTENT on the NA-PLUS PLATFORM, a limited, non-exclusive, non-transferable license to download or stream such CONTENT to their personal computer or mobile device for their personal use only.
D. Reservation of Rights. YOU hereby represent that YOU have the right to grant such licenses to LTI and to USERS of the NA-PLUS PLATFORM. Subject to the rights granted herein, YOU hereby reserve and retain all control and ownership rights over YOUR CONTENT.
E. Termination or Withdrawal of License. Upon termination of this AGREEMENT, the license granted to LTI to use YOUR CONTENT for promotional and commercial purposes and the license granted to any USERS of the NA-PLUS PLATFORM to stream YOUR CONTENT for their personal use shall terminate. The license granted to any USERS of the NA-PLUS PLATFORM that have downloaded YOUR CONTENT shall be perpetual.
VIII. Pricing; Service Fees; Payment.
A. Pricing. During the uploading process, YOU will select from the menu the retail price ("Retail Price") that YOU will charge a USER in exchange for the sale or rental of YOUR CONTENT; provided that the Retail Price shall be set between the Minimum Retail Price and the Maximum Retail Price to be charged for such CONTENT as shall be set from time to time by LTI in its discretion. Thereafter, YOU may change the Retail Price to be charged for the sale or rental of YOUR CONTENT subject to LTI's Minimum Retail Price and Maximum Retail Price restrictions in effect at the time of change, and provided such change shall become effective only upon LTI's review and approval.
B. Payment Processing. The NA-PLUS PLATFORM uses a third-party payment processor ("Payment Processor") to process all payments for YOUR CONTENT from USERS.
C. Service Fee. YOU will not incur any costs for registering an NA-PLUS UPLOADER account. LTI will charge YOU a service fee ("Service Fee") to BROADCAST YOUR CONTENT on the NA-PLUS PLATFORM. LTI will be entitled to a Service Fee of fifteen percent (15%) of the NET PROCEEDS received by LTI from the Payment Processor for the sale or rental of the YOUR CONTENT.
D. Remittance of Payment to UPLOADER. Typically, there will be a two (2) week delay between any sales or rental transactions on the NA-PLUS PLATFORM for a given week and the receipt of the NET PROCEEDS for such week by LTI from the Payment Processor. Provided that the amount due to YOU is in excess of $100.00 for any sales and rentals transacted during a given week, LTI shall remit to YOU the eighty-five percent (85%) of NET PROCEEDS due to YOU under this AGREEMENT for that week no later than at the end of the week upon which such NET PROCEEDS are actually received by LTI. Such remittance shall be made to YOU, at your direction, either by PayPal or by U.S. Mail mailed to the street address or P.O. Box in YOUR NA-PLUS UPLOADER account. If the amount due YOU for a particular week does not exceed the minimum amount of $100.00 for that week, then the amount due YOU for that week will carry forward to the next week and so on until the minimum amount due YOU is in excess of $100.00.
D. UPLOADER Information. It is YOUR responsibility to ensure that all of your payment information is complete and accurate to avoid any delays in the processing of the NET PROCEEDS by LTI and to inform us of any issues which may arise with such payments.
E. Taxes. It is YOUR responsibility to remit any and all applicable sales taxes to the applicable tax authorities. Notwithstanding the foregoing, where legally required, LTI may withhold any sales taxes and remit them directly to the concerned tax authorities. In such cases, no sales taxes will be paid to YOU. Notwithstanding anything to the contrary, YOU agree to hold harmless and to indemnify LTI from any and all claims made against them by third parties, including tax authorities, in regard of any sale taxes, or any withholding thereof, with respect to YOUR CONTENT as the result of any sales or rental of such CONTENT to USERS. Notwithstanding anything to the contrary, YOU agree and understand that YOU are solely responsible for the payment of all federal, state, and local government taxes, levies or any other similar fees.
F. Currency. All amounts referred to herein and all monetary transactions on the NA-PLUS PLATFORM are in US dollars (USD). When available, and at LTI's sole discretion, payments may be made in the currency chosen by the UPLOADER, or the currency of its place of residence, in which case any currency conversions will be based on the then prevailing exchange rate of the bank or payment agency handling said payment to the UPLOADER.
G. Adjustments. As a general rule, LTI does not issue credits, refunds or cash back on CONTENT purchased by USERS. However, LTI may, at its sole discretion, adjust or deduct from the amount to be remitted, or already remitted for payment, to UPLOADER for any reason, at any time, without prior notice. In the case where the payment has already been issued to UPLOADER, LTI will deduct such adjustment from the following amount to be remitted to UPLOADER. The most common reasons for adjustments include, but are not limited to, customer credits, refunds, fraud, corrupted CONTENT or grossly misleading or mislabeled CONTENT and technical errors.
H. Payout – Closing of YOUR NA-PLUS UPLOADER account. If YOU decide to close YOUR NA-PLUS UPLOADER account, which YOU can do at any time, LTI will apply compensation between the amounts owed by LTI to YOU and the amounts owed by YOU to LTI. With respect to remittance as per section D. above, LTI will remit your remaining balance in whole on the next planned remittance period, subject to the following.
LTI will issue one (1) check in the name of UPLOADER. UPLOADER is responsible for ensuring that LTI has the appropriate information and contact details to be able to remit and send the balance to UPLOADER by check. LTI will send the check to the last address it had on file at the closing date of the account. Should the check be returned as undeliverable, LTI will keep the balance for three (3) years following the closure of that account, unless required to do otherwise by law. Unless prohibited by applicable law, UPLOADER will be deemed to have expressly and irrevocably waived and renounced to remittance of the balance owed by LTI to UPLOADER three (3) years after the closing date of the said account.
IX. 2257 Requirements.
A. Certification of Compliance Under 18 U.S.C. By entering into this AGREEMENT, YOU certify that YOUR CONTENT contains no depictions of minors, whether actual minors or simulated minors, and that YOUR CONTENT fully complies with the requirements of 18 U.S.C. §§ 2257 and 2257A and the requirements of 28 C.F.R. § 75 (together, the “2257 Requirements”), and the requirements of any similar legislation. YOU hereby certify that you possess and maintain age verification documentation in a form acceptable to LTI. YOU further certify that YOU have implemented and that YOU maintain a "Custodian of Records" as that term is defined in the 2257 Requirements.
B. Production of 2257 Records. YOU agree to provide to LTI, upon LTI’s request, valid and fully compliant documents as required by the 2257 Requirements (the “2257 Records). For each piece of CONTENT, the 2257 Records must describe the title of the CONTENT, the date of original production, and the country of production. The 2257 Records must also include the following identity- and age-verification documents for every person appearing in YOUR CONTENT (hereafter “Performer”), even if a Performer’s face is not visible in the CONTENT:
For every Performer, at least one (1) photograph of a government-issued picture identification card (valid as of the date of original production), laying on a flat surface (the “flat photo”), and at least one (1) photograph of the Performer holding his or her picture identification card next to the Performer’s face (the “bunny ear photo”). Note that the photographs of the picture identification card must be legible (i.e., not blurry, not dark, and not obstructed by glare), and must clearly display the Performer’s legal name, date of birth, the number of the identification card, and the date of expiration.
For every Performer, a separate written document that describes the Performer’s legal name, date of birth, and every name other than the Performer’s legal name ever used by the Performer, including maiden name, stage name(s), alias(es) , nickname(s), or professional name(s).
If YOU are unable to timely provide LTI with 2257 records for YOUR CONTENT, LTI will immediately remove such CONTENT from display.
C. Reporting of Pornography Involving Minors. LTI is committed to cooperate with any law-enforcement agency investigating child pornography, and to comply with any applicable law relating to the mandatory reporting of pornography involving minors. We request and encourage you to report any unlawful activities involving minors directly to us and to the authorities. Your report must include any appropriate evidence, including the identified content, as well as the time and date of identification. All reports will be taken seriously and immediately investigated.
D. Section 230 Notice. YOU understand and acknowledge YOUR responsibility to prevent minors under YOUR care from accessing explicit, harmful or otherwise inappropriate material: YOU understand that no minor can have access to the CONTENT, and YOU agree and warrant taking responsible measures to prevent them from doing so. Parental control protections (such as computer hardware, software, or filtering services) are commercially available and may assist YOU in limiting access to material that is explicit, harmful or otherwise inappropriate to minors. Furthermore, YOU agree that is it YOUR sole responsibility, at the total exclusion of LTI’s, to keep any explicit, harmful or otherwise inappropriate material from being displayed, viewed or accessed to by minors.
X. Term and Termination.
A. Term. The term of this AGREEMENT will begin as of the date YOUR Application to become an UPLOADER is approved and will end when terminated by either party.
B. Notice of Termination. Either party may terminate this AGREEMENT for any reason at any time, with or without cause, by giving the other party notice of termination, which shall be effective immediately
C. Survival Upon Termination. Upon termination, the following provisions of this AGREEMENT shall continue in effect: (1) the obligation of LTI to pay YOU the amount owing at the time of termination; (2) the representations and warranties of the parties; (3) the Limitation of Liability provision; (4) the Indemnification provision; and (5) the Dispute Resolution provision.
D. Forfeiture of Amount Owing. If LTI terminates this AGREEMENT for cause (e.g., YOU are in violation or breach of this AGREEMENT), YOU agree and understand that any amount owing to YOU at the time of termination will be forfeited. Further, LTI shall have no obligation to pay YOU any amount that is allegedly due and owing while it investigates any potential breach by YOU of this AGREEMENT.
Limitation of Liability.
EXCEPT FOR CLAIMS ARISING FROM LTI’S GROSS NEGLIGENCE, FRAUD, WILLFUL INJURY TO THE PERSON OR PROPERTY OF ANOTHER, OR VIOLATION OF LAW, YOU HERBY RELEASE LTI AND AGREE THAT LTI (INCLUDING ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) SHALL NOT BE LIABLE TO YOU WITH RESPECT TO ANY REAL OR INTANGIBLE LOSSES, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, LOSS OF RIGHTS OR SERVICES, LOSS OF DATA, DOWNTIME OR INTERRUPTION OF BUSINESS, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR THE OPERATION OR FAILURE OF THE NA-PLUS PLATFORM, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT LTI HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS, INJURY, AND/OR DAMAGES. WITHOUT LIMITATION, LTI SHALL HAVE NO LIABILITY TO YOU FOR CLAIMS ARISING FROM THE ACTIONS OF USERS, INCLUDING CLAIMS FOR HARASSMENT, INVASION OF PRIVACY, OR EMOTIONAL DISTRESS. ANY INFORMATION YOU CHOOSE TO SHARE IN YOUR CONTENT REMAINS YOUR SOLE RESPONSIBILITY AND IS DONE AT YOUR OWN RISK. USE OF NA-PLUS PLATFORM FOR THE PURPOSES OF ENGAGING IN ILLEGAL OR UNLAWFUL CONDUCT IS PROHIBITED. YOU FURTHER AGREE THAT, IN THE EVENT THIS SECTION OF THE AGREEMENT IS DEEMED INVALID FOR ANY REASON THAT LTI’S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CLAIM OR CAUSE OF ACTION BASED ON THIS AGREEMENT, WHETHER GROUNDED IN CONTRACT OR IN TORT, SHALL BE LIMITED TO THE TOTAL AMOUNT PAID OR PAYABLE TO YOU BY LTI DURNG THE MONTH IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
YOU agree to indemnify, defend, and hold harmless LTI and all its officers, directors, shareholders, employees, assigns, agents, attorneys, representatives, and any other person or entity now or hereafter affiliated with them, and each of them (collectively, “Indemnified Parties”), of and from any and all claims, causes of action, losses, costs, expenses and damages (including reasonable attorney’s fees and court costs) to any person or property of any nature whatsoever, whether or not now known, unsuspected or claimed, arising from: (1) this AGREEMENT; (2) YOUR performance under this AGREEMENT; (3) YOUR breach of any part of this AGREEMENT; (4) YOUR use of the NA-PLUS PLATFORM; (5) YOUR alleged violation of any third party rights in connection therewith, including without limitation any copyright, trademark, intellectual property, or privacy right; (6) any claim that all or any part of your CONTENT caused injury or damage to a third party; and/or (7) any claim that all or any part of YOUR CONTENT was illegal or resulted from illegal activity. In connection therewith, YOU may not agree to any settlement that imposes any obligation or liability on LTI without LTI’s advanced express written consent. LTI will promptly notify YOU of any such claim or suit, as the case may be, and may decide in its sole discretion to cooperate (at YOUR expense) in the defense of such claim or suit. LTI reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by YOU. In such event, YOU shall cooperate as fully as is reasonably required in the defense of any claim. Your obligation to indemnify, defend and hold harmless LTI will survive the termination of this AGREEMENT by either party.
13.1 Governing Law. The validity, construction, performance, and breach of this AGREEMENT shall be governed by the laws of the State of California without regard to conflicts or choice of law principles. This AGREEMENT is deemed by the parties to have been executed and delivered in the State of California.
13.2 Binding Arbitration. Any and all disputes between the parties of whatever nature, including the validity, construction, performance, and breach of this AGREEMENT, shall be determined by binding arbitration to be conducted in San Diego County, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) before three (3) neutral arbitrators (“Arbitrators”) mutually agreed upon by the parties. If the parties are unable to agree on the Arbitrators, then the AAA shall appoint the Arbitrators. The parties shall be entitled to conduct limited discovery in accordance with the California Code of Civil Procedure then in effect, provided that (i) the Arbitrators must authorize all such discovery in advance based on findings that the material sought is relevant to the issues in dispute and that the nature and scope of such discovery is reasonable under the circumstances, and (ii) the discovery shall be limited to depositions and the production of documents unless the Arbitrators find that another method of discovery (e.g., interrogatories) is the most reasonable and cost efficient method of obtaining the information sought. Class wide arbitrations are not allowed. Combining the individual claims of multiple UPLOADERS against LTI is not allowed. The Arbitrators shall have the power to enter an award of monetary damages and equitable relief that is consistent with the terms and conditions of this AGREEMENT as determined by the Arbitrators. The costs for such arbitration, including the filing fees, the administrative fees, and the Arbitrators’ hourly fees, shall initially be borne equally by the parties. The prevailing party shall be entitled to an award of its reasonable attorney’s fees, expert witness’ fees, and any other costs and expenses incurred in the arbitration, including reimbursement of its share of the amount initially paid to the AAA.
13.3 Forum and Venue Selection. Judgment upon the final award rendered in any Arbitration permitted under this AGREEMENT may be entered in any court of competent jurisdiction located within the County of San Diego, California. Nothing in this section shall prevent either party from seeking interlocutory and/or injunctive relief against the other party from a court of competent jurisdiction located in this venue. The venue specified in this paragraph is intended by the parties to be mandatory and not permissive in nature thereby precluding the possibility of litigation between the parties in any jurisdiction other than that so specified.
THE PARTIES TO THIS AGREEMENT WAIVE THEIR RIGHT TO JURY TRIAL WITH RESPECT TO ANY AND ALL CLAIMS AND ISSUES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER SOUNDING IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION, ANY CLAIM FOR FRAUDULENT INDUCEMENT TO ENTER THIS AGREEMENT OR TO PERFORM HEREUNDER. YOU FURTHER AGREE NOT TO COMBINE YOUR CLAIMS AGAINST LTI WITH THE CLAIMS OF ANY OTHER UPLOADERS AGAINST LTI AND YOU EXPRESSLY WAIVE ANY RIGHT TO PROCEED WITH A CLASS ACTION OR CLASS WIDE ARBITRATION AGAINST LTI BASED ON SUCH CLAIMS.
Severability. Whenever possible, each provision of this AGREEMENT will be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this AGREEMENT is held to be invalid, illegal, or unenforceable in any respect under applicable law, such provision shall be ineffective only to the extent of such invalidity, illegality, or unenforceability without affecting the remaining provisions of this AGREEMENT.
Notices. YOU may serve any notice provided for under this AGREEMENT to LTI by sending an email to: email@example.com. LTI may serve any notice provided for under this AGREEMENT to YOU by sending an email to the email address in YOUR NA-PLUS UPLOADER account. All notices shall be effective upon receipt.
D. Language. If this AGREEMENT is translated into any other language, it will be for information purposes only and the English language will prevail in the event of any conflict between the translated version and the English language version.
E. Assignment. YOUR obligations hereunder are personal in nature and may not be transferred or assigned by YOU without the prior written consent of LTI. LTI’s obligations LTI hereunder are corporate in nature and may be assigned by LTI without restriction. This AGREEMENT shall be binding upon and inure to the benefit of LTI’s successors and assigns.
F. No Waiver. LTI’s delay or failure to enforce any provision of this AGREEMENT on one occasion shall not in any way be construed as a continuing waiver of its right to enforce such provision on another occasion nor shall such delay or failure prevent LTI from enforcing any other provision of this AGREEMENT.
G. Headings. The heading of sections of this AGREEMENT are provided for convenience of reference only and are not intended to be part of or affect the meaning or interpretation of this AGREEMENT or any particular section thereof.
H. Representation of Counsel. Each party to this AGREEMENT has been represented by their respective counsel in connection with entering into this AGREEMENT and with respect to the transactions contemplated in this AGREEMENT or has expressly waived such representation. YOU have not relied upon LTI or its counsel with respect to the interpretation of this AGREEMENT or deciding whether to enter into this AGREEMENT.
I. No Interpretation of Ambiguity Against Drafter. LTI’s attorney has drafted this AGREEMENT. YOU hereby waive any rule that would direct that an ambiguity in this AGREEMENT should be construed against LTI based on the same. YOU further waive the rule of construction contained in Section 1654 of the California Civil Code.
J. Independent Contractor. UPLOADER’s relationship with LTI is that of an independent contractor and no partnership, joint venture, employment, agency or other relationship is intended or created under this AGREEMENT.
K. No Other Limitations. Nothing herein shall be construed to limit or prevent either party's abilities to conduct their respective business with respect to matters not specifically addressed under this AGREEMENT.
XV. Execution of AGREEMENT.
By providing YOUR electronic signature below, YOU hereby acknowledge that YOU have carefully read, fully understand, and agree to the terms and conditions of this AGREEMENT. YOU further certify that YOU have entered into this AGREEMENT knowingly and voluntarily and not under duress or under inducement of any promise not set forth in this AGREEMENT.
YOU are electronically signing this AGREEMENT by clicking on the “I Agree” button below. YOU agree that YOUR electronic signature is valid and enforceable under the Uniform Electronic Transaction Act, which is contained in the California Civil Code. YOU understand and agree that this AGREEMENT may not be denied legal effect, validity, or enforceability solely because YOUR electronic signature was used in its formation. YOU further understand and agree that electronic signatures and records are as good as their paper equivalent and therefore are subject to the same legal scrutiny and authenticity that applies to paper documents.