This Agreement contains terms and conditions which apply to your participation as
a member of the HD Pays Program (the "HDP" PROGRAM"), operated by Storm Media, Inc.
("Storm") (hereinafter, "COMPANY," "we" or "us"). As used in this Agreement, "you"
or "your" means the applicant/participating member.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND COMPANY. BY SUBMITTING AN APPLICATION FOR
ENROLLMENT IN THE HDP PROGRAM YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND
UNDERSTAND THE TERMS AND CONDITIONS SET FORTH HEREIN AND ARE AFFIRMATIVELY INDICATING
YOUR ACCEPTANCE OF THIS HDP PROGRAM AGREEMENT AND THAT YOU AGREE TO BE BOUND BY THE
TERMS HEREOF. YOU CANNOT BECOME A MEMBER OF THE HDP PROGRAM UNLESS YOU HAVE ACCEPTED
EACH AND EVERY TERM HEREOF.
1. Definitions.
A. "advertiser": Also referred to as "merchant", "e-tailer" or "e-retailer", any
website or authorized agent that represents any website that sells a product or
service, accepts payment and fulfills orders.
B. "affiliate program": A program in which a publisher is paid a predetermined amount
for sales generated by the publisher for another company or for leads or other
action oriented activity.
C. "publisher": Also referred to a "webmaster", "affiliate", or "content site", an
independent or third party or website (web property) that promotes products or
services of an advertiser in exchange for a commission.
D. "web property": Also referred to as a "site", "website" or "domain", an internet
location in which all content, subject matter and activities are controlled by
the publisher.
2. Enrollment in this Program.
To begin the enrollment process, you will submit a completed application through our
website: http://www.hdpays.com. In order to enroll and participate in the HDP PROGRAM,
you must be over the age of eighteen (18) years, or over the age of majority if you
reside and/or conduct business in states, provinces or countries where the age of
majority is greater than eighteen (18) years. You may not participate in the HDP
PROGRAM in any way if you are not of the age of majority in the state, province
or country where you reside and/or conduct business. We will evaluate your application
in good faith and will notify you of your acceptance or rejection. We may reject your
application if, in our sole discretion, we determine that your web property is unsuitable
for the HDP PROGRAM for any reason. Our reasons may include, but are not limited to,
that we believe your web property incorporates images or content that are unlawful,
defamatory, obscene, harassing or otherwise objectionable. We may also reject your
application if we believe, in our sole discretion, your web property facilitates
illegal activity, promotes violence or promotes or assists others in promoting
copyright infringement or if you provide incomplete and/or inaccurate information
on your submitted application.
3. Responsibility for Your Site.
While we will review your web property for suitability to participate in the HDP
PROGRAM, you will be solely responsible for the development, operation and maintenance
of your web property and for all materials that appear on your web property. We shall
have no responsibility for the development, operation and maintenance of your web
property and for any materials that appear on your web property. You shall also be
responsible for ensuring that materials posted on your web property do not violate or
infringe upon any laws including, but not limited to, 18 U.S.C. Section 2257, or the
rights of any third party (including, for example, copyrights, trademarks, privacy,
or other personal or proprietary rights), and ensuring that materials posted on your
web property are not libelous or otherwise illegal (including depictions of actual,
implied or simulated bestiality, rape, incest, child pornography, or any other content
deemed inappropriate or illegal). You must have express permission to use another
party's copyrighted or otherwise proprietary material. We will not be responsible
if you use another party's copyrighted or otherwise proprietary material in violation
of the law. You further agree to fully indemnify and hold the COMPANY harmless from
all matter of any kind or nature that may arise out of your failure to comply with the
provisions of this paragraph, and that the provisions of paragraph 13 herein shall apply
to, in addition to those set forth in said paragraph 15, the promises and covenants set
forth herein.
The following terms, along with any derivatives thereof, may not appear anywhere in the
HTML or graphics on your web property:
animal sex, bestiality, Cherie, Disney, family sex, forced sex, High Society, Hustler,
illegal, Incest, kidnap, mutilate, Penthouse Pet, Playboy Playmate, rape, scat,
unconsensual, pissing, peeing
We reserve the right, in our sole discretion, to terminate your membership in the HDP
PROGRAM for using any of the listed words, phrases, or derivatives of the listed words
or phrases and subparts thereof. If your membership is terminated for using banned terms
you will forfeit all monies and accumulated rewards points otherwise due you.
4. Bulk E-Mailings: Acceptable and Non-Acceptable Use.
A. Publishers may not promote HDP approved pay sites and products through the
transmission of unsolicited bulk e-mail (UBE), or any other forms of e-mail
promotion. Failure to strictly comply with these provisions will result in
the immediate termination of your account and you will forfeit all unpaid
monies earned and all accumulated rewards points.
Should any law enforcement agency, internet service provider or other person
or entity provide COMPANY with notice that you have engaged in transmission of
unsolicited e-mails or have engaged in otherwise unlawful conduct or conduct in
violation of an internet service provider's terms of service, we reserve the right
to cooperate in any investigation relating to your activities including disclosure
of your account information.
B. The following acts are also strictly prohibited and your participation in the
HDP PROGRAM will be terminated if you engage in them:
1. You may not transmit e-mail that makes use of or contains invalid or forged
headers, invalid or non-existing domain names or other means of deceptive addressing;
2. You may not transmit e-mail that is relayed from any third party's mail servers
without the permission of that third party or which employs similar techniques
to hide or obscure the source of the e-mail.
3. You may not harvest or collect screen names from any internet service provider
(ISP) for the purpose of sending unsolicited e-mail.
Many ISPs, such as America On Line, Inc. (AOL), and the Microsoft Network (MSN)
have policies and procedures relating to mass mailings to their members. We suggest
you familiarize yourself with such policies and abide by them. The AOL policy can be
found at www.aol.com/info/bulkemail.html. The MSN policy can be found at
http://privacy.msn.com/anti-spam/.
Should any law enforcement agency, internet service provider or other person or entity
provide COMPANY with notice that you have engaged in transmission of unsolicited e-mails
or have engaged in otherwise unlawful conduct or conduct in violation of an internet
service provider's terms of service, we reserve the right to cooperate in any
investigation relating to your activities including disclosure of your account
information.
5. Child Pornography.
We are especially adamant in assuring that no web properties associated in any way with
the HDP PROGRAM contain child pornography. We maintain a zero tolerance policy towards
anything related to child pornography and reserve the right to cooperate with law
enforcement authorities in any child pornography investigations. Not only do we
prohibit pictures which depict or insinuate sexual images of persons under the
age of eighteen (18), we also prohibit words which may insinuate sexual images or acts
of persons under the age of eighteen (18).
In addition to any other words we may deem to be inappropriate, the following is a
list of words (which may be amended at any time) which, along with any derivatives
thereof may not be used anywhere in the HTML or graphics on your site(s):
adolescent, child, children, elementary, fifteen, fourteen, high school, infant,
juvenile, kid, kiddy, kindergarten, little boy, little girl, lolita, lolita-teen,
minor, nymphet, pedophile, preteen, puberty, pubescent, seventeen, sixteen, thirteen,
underage, young boy, young child, young girl, young school boy, young school girl,
young teen, youth
If we determine, in our sole discretion, that you have violated the Company's zero
tolerance policy against child pornography, your membership in the Program will be
terminated immediately. You will forfeit all monies and accumulated rewards points
otherwise due you.
6. Other Grounds for Termination.
In addition to the foregoing, we will immediately terminate your participation in the
HDP PROGRAM if we believe you have engaged in any of the following:
A. Altering by electronic, mechanical or automated means or other technologies, that
may now exist or come into existence, the HDP publisher affiliate code or HDP site
URLs belonging to or identified with accounts other than your own, or causing the
modification or substitution of HDP publisher affiliate code or HDP side URLs
belonging to or identified with accounts other than your own that may reside within
or originate from a third party system in the form of bookmarks, cached pages,
cookies or other stored forms that may be passed to the HDP system and/or the
system(s) operated by the owners of other sites linked to or affiliated with the
HDP system by user operation of said third party system;
B. Any form of spamming including, but not limited to unsolicited e-mail, IRC postings,
newsgroups, and/or instant messaging clients;
C. Publishing, transferring, reassigning, disclosing, distributing, or permitting any
other person to use your HDP account without prior written consent of the COMPANY;
D. Providing inaccurate or incomplete information to COMPANY concerning your identity,
bank account, address or other required information;
E. Attempts to cheat, defraud or mislead us in any way;
F. Misrepresenting to the public the terms and conditions of the HDP approved pay sites
and products or your web property;
G. Promotion of HDP or HDP approved websites on password sites, MP3 sites, illegal tube
sites, peer to peer networks not approved by the COMPANY in advance, or "warez" sites;
H. Owning or operating a website in connection with a person who is under eighteen (18)
years of age; and/or under the age of majority in states, provinces or countries where
the age of majority is greater than eighteen (18) years;
I. Inclusion of stolen or unauthorized content on your site(s); and
J. Operating from a foreign country from which COMPANY will not accept accounts
including, but not limited to:
Afghanistan, Albania, Armenia, Azerbaijan, Belarus, , Bulgaria, China,
Costa Rica, Croatia, Cuba, , Estonia, Georgia, Hungary, India,
Indonesia, Iran, Iraq, Israel, Japan, Jordan, Kaliningrad, Kazakhstan, Korea,
Kuwait, Kyrgyzstan, Latvia, Lebanon, Lithuania, Macedonia, Malaysia, Moldova,
North Korea, Oman, Pakistan, Qatar, Philippines, , , Saudi Arabia,
Singapore, Slovakia, Slovenia, Sudan, Syria, Taiwan, Tajikistan, Thailand, Turkey,
Turkmenistan, , United Arab Emirates, Uzbekistan, Yemen, and Yugoslavia.
7. Commissions for Sign-ups to HDP Approved Subscription Based Adult Content Pay sites.
As a participating member in the HDP PROGRAM you will be paid for sign-ups generated by
you. All initial sign-ups and subsequent re-bills during the life of the customer account
shall be paid at the rate of fifty (50%) percent of gross collected revenues for each such
account. For purposes of this Terms of Service, Ôgross collected revenuesÕ shall be
defined as follows:
gross revenue per sign up, received by the COMPANY on a bi-weekly basis from subscription
based pay sites without subtracting any processing fees, refunds or chargebacks or any
associated fines from the gross trial price or the gross rebill price. "Collected" means
money actually received by the COMPANY for a sign up. If the COMPANY does not get paid for
whatever reason by processors for a sign up, then a commission will not be paid on that
sign up, Payment of commissions shall be made pursuant to paragraph 19 herein.
8. Webmaster Referrals:
With the Webmaster Referral Program, you have the ability to earn twice on your
webmaster traffic. Under this Program, ten (10%) percent of commission monies paid
during each payment period shall be paid to you for each affiliate that has joined the
HDP PROGRAM through your specific links that shall be provided to you in the linking code
section of the administration center of the HDP website (www.hdpays.com).
9. Term of the Agreement.
The term of this Agreement will begin upon our acceptance of your application and will
end when terminated by either party. Either you or we may terminate this Agreement at
any time, with or without cause, by giving the other party notice of termination. Notice
by e-mail, to your e-mail address in our records, is considered sufficient notice for us
to terminate this Agreement. If this Agreement is terminated because, in our sole
discretion, we believe you have violated the terms of this Agreement you are not eligible
to receive any commission payments or rewards, even for commissions and reward points
earned prior to the date of termination. If this Agreement is terminated for any other
reason, you are only eligible to earn a commission on sales occurring during the term of
the Agreement, and commissions earned through the date of termination will remain
payable only if the related orders are not canceled or returned. We reserve the right to
withhold your final payment for a reasonable time to ensure that the correct amount is paid.
10. Modification.
We may, in our sole discretion, modify any of the terms and conditions contained in this
Agreement at any time. Notice of any change by e-mail, to your address in our records,
or notice posted at http://www.hdpays.com , is considered sufficient notice to you of
a change to the terms and conditions of this Agreement. Modifications may include, but
are not limited to, changes in the scope of available commission fees, commission
schedules, payment procedures, and HDP PROGRAM rules. All such modifications shall
take effect 48 hours after we serve notice as provided above, unless we indicate
otherwise. If any modification is unacceptable to you, your only recourse is to terminate
this Agreement. Your continued participation in the HDP PROGRAM , following our posting
of modifications or a new agreement on our site, will constitute your binding acceptance
of the change in terms and conditions.
11. Relationship of Parties.
You and COMPANY are independent contractors, and nothing in this Agreement will create
any partnership, joint venture, agency, franchise, sales representative, or employment
relationship between the parties. You have no authority to make or accept any offers or
representations on our behalf. You will not make any statement, whether on your web
property or otherwise, that reasonably would contradict anything in this Section. You are
not an agent, express or implied, of the COMPANY and COMPANY expressly disclaims
responsibility for any conduct by you in violation of the terms of this Agreement.
12. Limitation of Liability.
We will not be liable for actual, indirect, special, or consequential damages, or
any loss of revenue, profits, or data, arising in connection with this Agreement or the
HDP PROGRAM , even if we have been advised of the possibility of such damages. Further,
our aggregate liability arising with respect to this Agreement and the HDP PROGRAM will
not exceed the total commissions paid or payable to you under this Agreement.
13. Representations and Warranties.
You hereby represent and warrant to us that this Agreement has been duly and validly
executed and delivered by you and constitutes your legal, valid and binding obligation,
enforceable against you in accordance with its terms. You further represent and warrant that
the execution, delivery and performance by you of this Agreement are within your legal
capacity and power, have been duly authorized by all requisite action on your part, require
the approval or consent of no other persons, and neither violate nor constitute a default
under (i) the provision of any law, rule, regulation, order, judgment or decree to which you
are subject or which is binding upon you, or (ii) the terms of any other agreement, document
or instrument applicable to you or binding upon you. In addition to the above, you expressly
warrant and represent that any and all websites owned or controlled by you, fully comply with
the provisions and requirements under 18 U.S.C. Section 2257 as amended.
14.Confidentiality.
We may disclose to you certain information as a result of your participation in the HDP
PROGRAM which we consider to be confidential (herein referred to as
"Confidential Information"). For purpose of this Agreement, the term "Confidential Information"
shall include, but not be limited to:
A. Any modifications to the terms and provisions of this Agreement made specifically for you
or your web property and not generally available to other members of the HDP PROGRAM ;
B. Website, business, and financial information relating to COMPANY; and
C. Customer and vendor lists relating to COMPANY and any members of the HDP PROGRAM other
than you. Confidential Information shall also include any information that we designate
as confidential during the term of this Agreement. You agree not to disclose any Confidential
Information and that such Confidential Information shall remain secret and shall not be
utilized, directly or indirectly, by you for your own business purposes or for any other
purpose, except to the extent that any such information is generally known or available to
the public or if disclosure is required by law or legal process.
15. Indemnification.
You hereby agree to indemnify, defend and hold harmless COMPANY, its shareholders,
officers, directors, employees, agents, affiliates, successors and assigns, from
and against any and all claims, losses, liabilities, damages or expense (including
attorneys' fees and costs) of any nature whatsoever incurred or suffered by us
(collectively the "losses"), insofar as the losses (or actions in respect thereof)
arise out of, or are based on,
A. Any claim or threatened claim that our use of your trademark(s) infringes on
the rights of any third party;
B. The breach of any promise, covenant, representation or warranty made by you herein; or
C. Any claim, in whatever form and of whatever nature that is related to your web property.
16. Disclaimers.
WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE
HDP PROGRAM, ANY COMPANY SERVICES, OR ITEMS SOLD THROUGH THE HDP PROGRAM
(INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A
COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, WE MAKE NO
REPRESENTATION THAT THE OPERATION OF OUR SITE(S) WILL BE UNINTERRUPTED OR ERROR-FREE,
AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
17. Single Application.
We only allow one application per 24-hour period. If your application was rejected
because you submitted erroneous information, please resubmit an application with
correct information the following day.
18. Forms of Promotion.
As the owner/operator of an affiliate web property of COMPANY ("Affiliate Property"),
you may use any form of promotion you choose, consistent with the terms of this Agreement
and subject to any restrictions imposed by specific advertisers whose products or services
you promote. You may use any and all provided promotional materials, such as banner
advertisements, button links and/or text links (collectively referred to herein as "Links"
or "the Links") to HDP approved advertisers, pay sites and products, however, you
CANNOT SPAM. (See Section 4 herein).
Allowable Links may contain COMPANY'S trade names, service marks, and/or logos for
display on your Affiliate Site(s). Subject to the terms and conditions hereof, you
are granted a limited, non-exclusive, non-transferable license to access and download
such Links and other designated promotional materials for placement on your Affiliate
Site(s) for the sole and exclusive purpose of promoting HDP approved products and
websites. In utilizing the Links, you agree that you will cooperate fully with us in
order to establish and maintain such Link or Links. A Link may only be visually
modified with our consent. You may not use incentives or offers of free or reduced
priced goods or services to promote purchases of products, services or memberships
available through the HDP PROGRAM .
19. Commission Payment.
Commissions due and owing to you under the HDP PROGRAM will be paid to you
directly by HDP every two (2) weeks on the second Wednesday following the end of the
pay period. Pay periods run from Monday to the second Sunday You have the option of
being paid by check, wire or cable transfer (for a fee). Your application for an
account in the HDP PROGRAM must include a verifiable street address and a verified
and executed Internal Revenue Service form W9. We reserve the right not to send
commission checks to post office boxes.
20. Insufficient Activity.
If, as a participating member, you fail to send traffic (i.e., uniques) to the HDP
PROGRAM for any consecutive sixty (60) day period, we reserve the right to terminate
your membership in the HDP PROGRAM . If your membership is terminated for this reason,
you may apply for a new account.
21. Miscellaneous.
Terminated accounts, except as expressly provided in Section 19 herein, cannot later
apply to the HDP PROGRAM without our express written consent. This Agreement will be
governed by the laws of the United States and the State of Nevada , without reference
to rules governing choice of laws. The sole and exclusive venue for any action arising
under this Agreement will be the state and federal courts sitting in Las Vegas , Nevada ,
and you hereby submit to the jurisdiction and venue of such courts. You may not assign
this Agreement, by operation of law or otherwise, without our prior written consent.
Subject to that restriction, this Agreement shall be binding on, inure to the benefit of,
and shall be enforceable against the parties and their respective successors and assigns.
Our failure to enforce your strict performance of any provision of this Agreement will
not constitute a waiver of our right to subsequently enforce such provision or any other
provision of this Agreement.
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND COMPANY. BY SUBMITTING AN APPLICATION FOR
ENROLLMENT IN THE HDP PROGRAM YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND
UNDERSTAND THE TERMS AND CONDITIONS SET FORTH HEREIN AND ARE AFFIRMATIVELY INDICATING
YOUR ACCEPTANCE OF THIS HDP PROGRAM AGREEMENT AND THAT YOU AGREE TO BE BOUND BY THE
TERMS HEREOF. YOU CANNOT BECOME A MEMBER OF THE HDP PROGRAM UNLESS YOU HAVE ACCEPTED
EACH AND EVERY TERM HEREOF.
