Model Release Agreement
TRIFECTA CREATIONS, INC. MODEL AGREEMENT This MODEL AGREEMENT (“AGREEMENT’) is made between Trifecta Creations, Inc. (“TRIFECTA CREATIONS”), having as its principal place of business 125-720 King Street West, Suite 302, Toronto, Ontario, M5V 3S5 and THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH TRIFECTA CREATIONS WILL PROVIDE INTERNET VIDEO STREAMING ACCESS SERVICES TO MODEL. 1. TERM and RENEWAL. The term of this AGREEMENT is month to month and is automatically renewed unless otherwise terminated pursuant to this section or other applicable provisions of this agreement or the Rules and Regulations, commencing from the date entered herein above. Any party to this agreement with or without cause may immediately terminate this AGREEMENT by delivery to the other party or it’s designated agent, by e-mail, Fax, or Fedex, a written notice of termination. If such AGREEMENT is terminated in the middle of a given month then any monthly fees paid in advance by MODEL to TRIFECTA CREATIONS shall be refunded within a reasonable period of time upon written request by MODEL in a pro-rata manner. 2. E-COMMERCE SERVICES. TRIFECTA CREATIONS agrees to provide e-commerce services for MODEL’s Profile page on the TRIFECTA CREATIONS Network, namely, to collect fees paid to MODEL by third party payors for services rendered through MODEL’s Profile page on the TRIFECTA CREATIONS Network and to pay MODEL’s portion of said fees to MODEL on an approximately twice-monthly basis. In exchange for provision of said e-commerce, profile page, and hosting services, MODEL agrees, amongst other things contained in this Agreement: a. that TRIFECTA CREATIONS will deduct and retain for its own account no less than 35% and up to 50% (25% - 50%) of the total amount of monies thus received on behalf of MODEL, b. that MODEL shall charge no less than Ninety-Nine Cents ($0.99) per minute as fees for services rendered through its Profile page on the TRIFECTA CREATIONS Network, c. that MODEL will clearly post all said fees on MODEL’s profile on the TRIFECTA CREATIONS Network, and d. that said posting by MODEL will be available to any client or customer of MODEL in advance of contracting for any service offered through MODEL’s profile on the TRIFECTA CREATIONS Network. e. If there is no e-commerce for a period of thirty (30) days. TRIFECTA CREATIONS will, in its sole discretion, without written notice, terminate this agreement. f. MODEL agrees to the Model Release and Terms of Service which is hereby incorporated by reference and commonly found in the click-through agreement box upon sign-in via the TRIFECTA CREATIONS software. MODEL warrants that it has all the necessary rights needed to assign and grant the above intellectual property rights and shall do nothing to impair such rights. MODEL shall require any and all models or persons who use the TRIFECTA CREATIONS software and appear in any manner on TRIFECTA CREATIONS web sites, whether by audio, video, or chat, to agree to the “model release and terms of service” agreement. 3. CHARGE-BACKS/REFERRAL FEES TRIFECTA CREATIONS and MODEL agree that TRIFECTA CREATIONS has the right to make the following charges/deductions to MODEL and/or deductions from fees received by TRIFECTA CREATIONS on behalf of MODEL pursuant to providing said e-commerce services to MODEL, to wit: “charge-backs”, namely, any refunds, interest, and fees provided by TRIFECTA CREATIONS, or by any third party on behalf of TRIFECTA CREATIONS, to clients or customers of MODEL and/or related credit card companies and/or credit card processing companies and/or credit card issuing and Acquiring banks. MODEL acknowledges that by continuing to use the TRIFECTA CREATIONS services after acceptance of a given payment from TRIFECTA CREATIONS they are agreeing that all past payments made by TRIFECTA CREATIONS to MODEL for the given time periods were fairly and accurately calculated and that MODEL waives any and all claims for payment from TRIFECTA CREATIONS for all the time periods that the past payments covered and that TRIFECTA CREATIONS shall have no contractual obligation to retain historic data that covers such past payment time periods. 4. SOFTWARE. TRIFECTA CREATIONS licenses its MODELs’ software system for audio-video stream(s) to MODEL upon and only after the posting of MODEL’s Profile page pursuant to section 2 of this AGREEMENT and that MODEL may only use the software for services provided under this AGREEMENT consistent with the number of licenses and streams granted. The TRIFECTA CREATIONS Software Terms of Use are hereby incorporated by reference. Upon the termination of this AGREEMENT, MODEL shall delete his/her copy of said software from any and all of his/her computers and related equipment (including but not limited to memory storage devices and equipment such as hard drives and “floppy” disks). MODEL agrees to not share any information in regards to software used on the TRIFECTA CREATIONS Network with anyone. This includes the name of the software, where to obtain the software, how the software works, etc. 5. TRIFECTA CREATIONS NETWORK RULES AND REGULATIONS. MODEL and TRIFECTA CREATIONS acknowledge that below are the “TRIFECTA CREATIONS Network Rules and Regulations.” MODEL warrants that he/she has read and understood the TRIFECTA CREATIONS Network Rules and Regulations in their entirety and further warrants compliance with them. Members of the TRIFECTA CREATIONS Network, such as yourself, are known as “MODELs.” Likewise, your clients and customers through your TRIFECTA CREATIONS profile page are known as “Members / Customers.” Also, “TRIFECTA CREATIONS” refers to Trifecta Creations, Inc. and/or its designated agent. A. Yourself You, the MODEL, are not in any way an employee of TRIFECTA CREATIONS. You are an independent contractor of TRIFECTA CREATIONS. The AGREEMENT (including the TRIFECTA CREATIONS Network Rules and Regulations) between you and TRIFECTA CREATIONS does NOT tell you what your lawful content or your services shall be, and TRIFECTA CREATIONS does NOT otherwise exercise dominion or control over you. B. Your Profile page Your profile page on the TRIFECTA CREATIONS Network (your “Profile page”) will contain, amongst other things, a name you choose (so long as it not used by another MODEL), a photograph (which you shall have to submit), a link to a gallery of photographs (you shall also have to submit those photographs), your Profile page’s address, and your per minute charges and other information about the services you offer through your Profile page. Everything you post at your Profile page must comply with this AGREEMENT. C. Payment of Your Share TRIFECTA CREATIONS’s e-commerce services will allow Members / Customers to pay over the internet for the services you offer through your Profile page. TRIFECTA CREATIONS will pay you your share of those internet transactions, as discussed in the AGREEMENT between you and TRIFECTA CREATIONS, on approximately the first (1st) and fifteenth (15th) of every month. You will be able to access your recent accounting information online, at the MODELs page of the TRIFECTA CREATIONS Network web site. However, TRIFECTA CREATIONS will NOT provide you with hard copies of that accounting information — we encourage you to make copies of such information, as it appears, for your own records. D. Internet Service Providers You are free to use any “broadband” internet service provider you choose. From experience, TRIFECTA CREATIONS does NOT recommend that you use wireless connections (which can be very slow and experience several disruptions). TRIFECTA CREATIONS does recommend you explore local internet service providers, which can be fast and inexpensive. E. Video Service Providers TRIFECTA CREATIONS must be your only video/audio service provider for your TRIFECTA CREATIONS Profile page and for audio-video streaming under this Agreement and you may not link to other locations on the Internet from your TRIFECTA CREATIONS profile page or in e-mail communications with TRIFECTA CREATIONS customers. F. Payment to Others Payment to any persons (including but not limited to Models, actual human beings, legal persons, partners, employees, independent contractors, etc.) who render services on or appear through MODEL’s Profile page or via MODEL’s TRIFECTA CREATIONS Software License is MODEL’s sole responsibility, and such persons shall have no claims whatsoever against TRIFECTA CREATIONS. TRIFECTA CREATIONS may, in its sole discretion, withhold disputed monies from MODEL claimed by persons who rendered services for MODEL through MODEL’s profile page and who were not paid in whole or in part by MODEL. G. Age and Releases All people who perform services (including but not limited to performances) on or through your Profile page must be over eighteen (18) years of age. TRIFECTA CREATIONS MUST have proof of age as well as the appropriate releases and authorizations BEFORE any people may perform any services on or through your Profile page. H. Obscenity Absolutely NO service, in part or in whole and including but not limited to performances, that is on or through your TRIFECTA CREATIONS Network Profile page shall violate ANY law concerning obscenity. IN OTHER WORDS, THERE CANNOT BE ANY OBSCENITY ON OR THROUGH YOUR PROFILE PAGE. Obscenity includes BUT IS NOT LIMITED TO any actual sex or simulated conduct that is: child pornography, i.e., depictions of nudity, sexuality or sex involving any person under eighteen (18) years of age; incest; rape: any other coerced sexual conduct; bestiality, i.e., sex with animals; necrophilia, i.e., sex with dead bodies; penetration with inappropriate objects, e.g., fists, bottles, vegetables, tools, implements (e.g., plungers, light bulbs), animals (e.g., gerbils), etc.; bondage with penetration; urination (i.e., “peeing”) or defecation (i.e., ‘pooping”); ageinappropriate appearance, i.e., depictions of nudity, sexuality or sex by any person who LOOKS younger than 18 years of age, either naturally or because of scripting, make-up, costume, setting, demeanor, etc. You must remain on camera at substantially all times that the video stream is running. I. Violation of Copyrights and Other Rights Your services through your Profile page, in part or in whole, SHALL NOT violate any law of copyright; and they likewise SHALL NOT infringe upon the artistic rights, broadcast rights, civil rights, copyrights, dramatic rights, other property rights, performance rights, publicity rights, or any other rights of any person. J. Defamation Your services through your Profile page, in part or in whole, SHALL NOT slander, libel or defame any person (living or dead). K. Trade Marks, Service Marks, Trade Secrets, Etc. Your services through your Profile page, in part or in whole, SHALL NOT infringe upon, dilute, misappropriate or in any other way give rise to adverse claims regarding the trade marks, service marks, trade secrets or the like of any person or entity. L. Interference with Business Interests and Business Activities MODELs SHALL NOT damage, interfere with or in any other way give rise to adverse claims regarding the business interests or business activities of any other person, including any other MODEL. This includes, but is not limited to, making disparaging remarks about TRIFECTA CREATIONS (including its employees and its operations) or any TRIFECTA CREATIONS Network MODEL(s), harassing a MODEL, interfering with the services of a MODEL and the like -- whether through the services of your Web Page or by any other means. M. Content MODEL shall be compensated for any content (photos, videos, et al) produced for TRIFECTA CREATIONS. Once the MODEL is paid for content, TRIFECTA CREATIONS shall assume ownership of that content. N. Sharing of Contact Information A MODEL is not to share any of their own contact information. This includes, but is not limited to, URL's to websites, MySpace info, FaceBook info, AIM, MSN, Yahoo, Skype, ICQ, email addresses, phone numbers, etc. with members, customers, fans, other webmasters, et. al. O. Obtaining Member / Customer Contact Information A Model is not to ask members / users for their contact information. This includes, but is not limited to, URL's to websites, MySpace info, FaceBook info, AIM, MSN, Yahoo, Skype, ICQ, email addresses, phone numbers, etc. with members, customers, fans, other webmasters, et. al. P. Real Life Meetings with Members / Customers MODELS are never, under any circumstances, to set up real life meetings with users/members. Models are only allowed to meet with Members/Customers/Fans at TRIFECTA CREATIONS sponsored trips and events. Models who are caught engaging in any form of solicitation and/or prostitution will not only have their employment terminated, but will also be turned into their local police / authorities. Q. Drug Use MODELs are not allowed to use illegal drugs during member chats and/or private chats. Any and all illegal drugs should not even be within view of the cam. MODELs are not allowed to discuss their own illegal drug use on member chats, private chats, private messages, or in the forums. MODELs are not allowed to bring, use, or solicit illegal drugs during TRIFECTA CREATIONS trips and events. R. Alcohol Use MODELs will not consume alcohol during private chats or member chats. MODELs will not consume alcohol during TRIFECTA CREATIONS sponsored trips and events. S. Bad-Mouthing Other Models and Staff MODELs will not bad mouth other models, staff or the Trifecta Creations business to members / users, other webmasters, other models, etc. TRIFECTA CREATIONS shall attempt to peacefully resolve any issues have final say in how matters are resolved within the company and MODELs will not attempt to bypass what is decided by TRIFECTA CREATIONS staff. T. Public Drama MODELs will not bring their personal drama with other MODELs into public areas of any TRIFECTA CREATIONS websites. This means drama among MODELs will not be allowed in the public forums, private message, private chats, and member chats. There are private forums in which to address these issues. U. Sharing of Information from Private Forums MODELs will never share ANY information posted in the private model forum. This includes any information on any level from any posts made within the private model forums. V. Sharing Information for Other Models MODELs will not share contact information for any other MODEL with anyone. This includes, but is not limited to, where a model lives, home address, university/schools, URL's to websites, MySpace info, FaceBook info, AIM, MSN, Yahoo, Skype, ICQ, email addresses, phone numbers, etc. with members, customers, fans, other webmasters, et. al. W. Violation of the Rules and Regulations If you violate ANY part of the TRIFECTA CREATIONS Network Rules and Regulations, TRIFECTA CREATIONS can and may without waiver, amongst other things, block access to your Profile page, remove your Profile page and/or terminate the AGREEMENT between you and TRIFECTA CREATIONS. TRIFECTA CREATIONS also reserves any and all other rights it possesses without waiver, including but not limited to seeking legal action, damages and/or injunctive relief for any violation of the TRIFECTA CREATIONS Network Rules and Regulations. 6. AGREEMENT MAY CHANGE FROM TIME TO TIME MODEL and TRIFECTA CREATIONS further acknowledge and agree that TRIFECTA CREATIONS or its designated agent may, from time to time, change this AGREEMENT and all agreements incorporated by reference herein including, but not limited to the TRIFECTA CREATIONS Software Terms of Use, and the Model Release and Assignment of Intellectual Property Rights and that notice of said change(s) may be made by print, electronic, e-mail, link to profile page, click through agreement, or any other media or method of TRIFECTA CREATIONS’s choosing or of the choosing of TRIFECTA CREATIONS’s designated agent, and that MODEL by not providing notice of termination as provided in 1 above agrees to comply with and be bound by said changes. TRIFECTA CREATIONS’s acts of posting this and related Agreements as a click through agreement online or e-mailing this Agreement and related Agreements to a non-terminated MODEL manifest its acceptance and agreement to its terms. 7. GOVERNING LAW AND DISPUTES. This AGREEMENT, in whole and in part, shall be interpreted and construed under the laws of the Ontario, Canada. Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by binding arbitration administered by the Arbitration and Mediation Institute of Canada Inc. under its Commercial Arbitration Rules. Any and all filing fees for said arbitration shall be paid for by the complaining party. Said arbitration shall take place exclusively in Toronto, Ontario, Canada. Judgment on the award rendered by said arbitration, as well as fees and costs shall be entered by those courts of the Ontario, Canada, having jurisdiction within Toronto, Ontario, Canada. 8. AGE. MODEL represents and warrants that he/she is over the age of eighteen (18) and has provided proof thereof to TRIFECTA CREATIONS, or its designated agent, at or before the time of entering into this AGREEMENT. MODEL further represents, agrees, and warrants that any models or persons who use the TRIFECTA CREATIONS software licensed herein or appear in any manner on the TRIFECTA CREATIONS services provided herein shall be over the age of 18 and MODEL shall have provided accurate and complete documentation to TRIFECTA CREATIONS in advance consistent with the requirements of Section 2257 of Title 18 et seq of the United States Code and related provisions. 9. CONTENT AND EMPLOYMENT RELATIONSHIP. The MODEL hereby represents, and TRIFECTA CREATIONS confirms, that the MODEL is not an employee but rather an independent contractor. TRIFECTA CREATIONS does exercise control over the images, video, and content provided to the Network by the MODEL. Content provided to TRIFECTA CREATIONS can be subject to use for promotional materials and advertisements. Content includes all images and videos taken by and/or filmed by TRIFECTA CREATIONS representatives and photographers. MODEL shall be solely responsible for paying any and all taxes on monies paid by TRIFECTA CREATIONS to MODEL or on behalf of MODEL to third parties. 10. NO ASSIGNABILITY. MODEL agrees that it cannot assign this AGREEMENT, in whole or in part, without the prior written approval of TRIFECTA CREATIONS. 11. NOTICE ADDRESSES. Any notice required under this AGREEMENT must be provided in writing and to the following: Trifecta Creations, Inc. via e-mail (admin@onhercam.com) or postal mail to 125-720 King Street West, Suite 302 Toronto, Ontario, M5V 3S5 12. INDEMNIFICATION. MODEL agrees to pay the costs of defense, indemnify and hold TRIFECTA CREATIONS and its officers, directors, owners, shareholders, members, employees, attorneys, successors, agents, assigns and representatives from and against any and all loss, liability, claims, damage, cost or expense, causes of action, suits, proceedings, judgments, awards, executions and liens, including reasonable attorney’s fees and costs arising from or relating to actual or reasonably likely breaches of any terms, condition, warranty or representation made by MODEL in this AGREEMENT or by suits or claims brought by third parties related to or arising out of content provided by MODEL, MODEL’s use of TRIFECTA CREATIONS services, and/or MODEL’s acts, interlacing with, and communications with other MODEL’s and/or those visiting TRIFECTA CREATIONS websites. 13. LIMITATION OF LIABILITY. In no event will TRIFECTA CREATIONS be liable to MODEL or its models and those who appear through TRIFECTA CREATIONS’s services for loss of profits, loss of business, loss of use, loss of data, interruption of business, cost of procurement of substitute goods and services, or for any special, consequential, exemplary or incidental damages, arising out of or related to this agreement, however caused, and whether arising under contract, tort (including negligence) or any other theory of liability. The limits set forth in this section will apply even if the MODEL or model or other person has been advised of the possibility of such damages. In no event shall TRIFECTA CREATIONS’s aggregate liability under this AGREEMENT exceed the aggregate amounts paid to TRIFECTA CREATIONS hereunder. The foregoing provisions of this section shall not apply to the indemnification provisions in section 12. 14. MERGER. This AGREEMENT, including the TRIFECTA CREATIONS Network Rules and Regulations, and those portions incorporated by reference, constitutes the entire agreement between the MODEL and TRIFECTA CREATIONS relating to the subject matter of the AGREEMENT and shall supersede any prior Agreements related to the subject matters herein. 15. AMENDMENT. This AGREEMENT cannot be amended, altered or otherwise changed, except for as provided in section 6 of this AGREEMENT, without the express, written consent of both MODEL and TRIFECTA CREATIONS or TRIFECTA CREATIONS’s designated agent. 16. NON-COMPETITION Upon ending your employment with TRIFECTA CREATIONS you shall not solicit business from or otherwise encourage visits by Members / Customers with whom you made contact while you were a MODEL to any non-MODEL competitor of MODELs’ Profile pages. Models who are NOT exclusive to the TRIFECTA CREATIONS Network and who joined the TRIFECTA CREATIONS Network on or after October 1, 2008 are eligible to keep only forty percent to fifty percent (40% - 50%) of monies earned for private chats on the TRIFECTA CREATIONS Network and are not eligible for payouts larger than fifty percent (50%) on private chats while still employed by or participating in other competitive websites. If at anytime during your employment with TRIFECTA CREATIONS you do choose to become exclusive to the TRIFECTA CREATIONS Network, you are eligible to retain up to sixty-five percent (65%) of monies earned on private chats on the TRIFECTA CREATIONS Network. If a MODEL is currently employed by, participates in, or owns a competitive website PRIOR to joining the TRIFECTA CREATIONS Network, the MODEL must disclose those websites below in order to be exempt from potential legal action stemming from violation of this non-competition clause. This does NOT include profile pages such as FaceBook, MySpace, One Model Place et. al. This does include other model websites/networks, solo model websites, web cam websites, etc. Please list these sites below: MODELs may not solicit, set up, or do any cam chats on Yahoo Messenger, MSN Messenger, or on other messenger services or websites while you are part of the TRIFECTA CREATIONS Network. If a model fails to list additional websites that she webcams on upon applying to our site and is found to be a model on other webcam sites, that model will immediately have her percentage dropped to 40% and potentially suspended from our service for up to 2 weeks. If a model fails to notify OnHerCam when she joins another webcam site AFTER joining OnHerCam, she will have her percentage dropped to 30% for a period of one month and placed on probation for 30 days. During this period of probation the model is expected to be active on our site(s). Upon completing her probation of one month successfully, she will then be capped at 40% after her probation ends. 17. SEVERABILITY. Should any provision of this AGREEMENT be found by a court of law or equity to be void, invalid or unenforceable under any applicable law or equity, such a finding shall not affect the remainder of this AGREEMENT, in part or in whole, that can still be given effect without the void, invalid or unenforceable provision; to that end, the provisions of this AGREEMENT are severable. Any model who is found to be in violation of any aspect of this contract not only risks having her account suspended, but also terminated. Violations are reviewed on a case by case basis by the Admins / Owners and appropriate consequences will be decided upon by the Admins / Owners. OnHerCam reserves the right to refuse final payment to any model who knowingly violates the Model Release and Agreement. IN WITNESS WHEREOF, the parties have executed this AGREEMENT effective as of the date first written herein above. Signed: /S/ Sean Defreitas Trifecta Creations, Inc. MODEL acknowledges acceptance of this Agreement by continued use of the TRIFECTA CREATIONS services after receipt of this Agreement and/or by “click-through’ acceptance of this Agreement.
I Agree to the Terms & Conditions
