ADULTSIGHTS.COM
AFFILIATE AGREEMENT
Last
Modified Date:
THIS AGREEMENT was made between
WCD Enterprises Inc., operating in this instance as AdultSights
(“ADULTSIGHTS”), and the undersigned Member Affiliate, (“Affiliate”) on the
date the online Application form is submitted to and approved by ADULTSIGHTS.
IMPORTANT! Nobody
is authorized to act as an Affiliate for this Site unless they have signed this
Agreement. Such signature does not need
to be a physical signature, since this Agreement
is intended to be governed by the Electronic Signatures in Global and National
Commerce Act (E-Sign Act). You manifest
your agreement to these Terms and Conditions by any act demonstrating your
assent thereto, including clicking any button containing the words “I agree” or
similar syntax. You should
understand that this has the same legal effect as You placing Your physical
signature on any other legal contract. You may submit a paper copy of this
transaction and print this form for your personal records. You have the right
to withdraw your consent to use the E-Sign Act by emailing us. Your consent to
use the E-Sign Act is limited to providing the information on this form. Access
to this electronic record requires a simple browser program such as Internet
ExplorerTM or NetscapeTM
and a computer.
This Agreement is a legal contract between You, the
Affiliate and the site.You should treat it as any other legal contract by
reading its provisions carefully, as they will affect Your legal rights. By accessing the Site in any manner, You are
affirmatively agreeing to be bound by all of the terms contained in this
Agreement. You may not pick and choose
which terms apply to You. If You do not
agree with all of the terms in this Agreement, You must cease all access and
use of the Site and any other services provided by the site.
You are solely responsible for obtaining access to the Sites and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Sites (i.e., computers, modems, and software, including the most recent versions of Internet browsers, applications, and plug-ins).
REVISIONS TO
THIS AGREEMENT
W
I T N E S S E T H:
WHEREAS,
ADULTSIGHTS has developed an affiliate service
program for its Website, www.adultsights.com , (hereinafter the
“Website” or “Site”) and intends to market its affiliate service program, (“the Program”), through various
online and traditional media; ADULTSIGHTS may use the BirthDateVerifier, a
proprietary birth date verification device, pursuant to 28 U.S.C.s. 1746, which
does not rely on credit cards for age verification prior to entry.
WHEREAS,
Affiliate desires to use the Affiliate’s Program to develop its Internet
presence, subject to the terms and conditions stated herein.
WHEREAS, ADULTSIGHTS and Affiliate have determined that it is in their respective interests to enter into this Agreement;
NOW, THEREFORE, for good and valuable consideration, and in consideration of the mutual covenants and conditions herein set forth, and with the intent to be legally bound thereby, and Affiliate hereby agree as follows:
1. Grant
of License and WEBMASTER’S CONTENT
ADULTSIGHTS agrees
to provide the Program to Affiliate and to provide Affiliate with the links, computer
script and other promotional materials that are associated with the Program
from time to time, and hereby grants a non-exclusive, restricted license to use
such content, links, script and promotional materials for the purposes set
forth in this Agreement. ADULTSIGHTS materials may not be used in violation of
any term contained in this Agreement. Affiliate’s license to use this material
shall automatically terminate, and all such rights shall automatically revert
to ADULTSIGHTS upon cancellation of the Affiliate’s membership or withdrawal
from the Program by the Affiliate.
The Affiliate
shall be solely responsible for all content available on or through its website
served by ADULTSIGHTS Services, and shall at all times be subject to the terms
of this Agreement. Affiliate further warrants that its Site and Materials
served by ADULTSIGHTS Services will not infringe or contain any content that
infringes upon or violates any intellectual property rights, or otherwise
violates any applicable law, rule or regulation. ADULTSIGHTS shall have no
obligations with respect to the content available on or through any
participating site, including but not limited to, any duty to review or monitor
any such content. Thus, Affiliate is solely responsible for the content on
Affiliate’s Site.
2. ENROLLMENT PROCEDURE
To begin the
enrollment procedure, you must submit a completed ADULTSIGHTS Affiliate Program
Application form through our Affiliate Website: http://www.adultsights.com/webmaster.cfm When you sign up, you must provide a valid
email address. Failure to do so will result in your account being deleted. We
will evaluate your application in good faith and will notify you of your
acceptance or rejection. We reserve the
discretion to accept or reject applications for any reason including, but not
limited to 1) if unlawful content appears on your site; 2) if your site
violates our Acceptable Use Policy found in Section 9 of this agreement; 3) if
your site promotes or facilitates illegal activity, or violates the rights of
others such as copyright, trademark or other intellectual property
infringement; 4) if you encourage password theft or hacking; 5) if your site
does not receive a sufficient number of unique hits; or 6) if ADULTSIGHTS deems
your application or site to be unsuitable for any reason whatsoever.
3. DOMAIN NAME SUBMISSION
Affiliate must submit a unique url to
identify the site desired for acceptance into the ADULTSIGHTS Program,
during the sign up process. The url submitted shall not infringe on any
trademark or service mark rights of any third parties. Affiliate shall adhere to the policies and
practices of ADULTSIGHTS pertaining to the use of certain words and names in
subscribing websites and the compliance by websites with United States’
intellectual property laws.
4. Term
This Agreement,
and the provisions hereof, shall be in full force and effect commencing on the
date accepted by ADULTSIGHTS and continuing until terminated by either of the
parties in accordance with the Termination provisions set forth infra.
5. Compensation
AND Benefits
Compensation and
Benefits for the ADULTSIGHTS Affiliate Program is listed on the Site at http://www.adultsights.com/webmaster.cfm
Additional promotional benefits or restrictions may be implemented from time to
time, and notices of such benefits or restrictions shall be conspicuously
stated on the Website. Affiliate agrees
to check back periodically to review the current compensation and benefits
pertaining to this program.
6. Implementation
ADULTSIGHTS and
Affiliate acknowledge that “time is of the essence” in the commencement of this
Agreement. ADULTSIGHTS will devote all
commercially reasonable efforts to provide Affiliate with all necessary
content, links, script and promotional materials as soon as reasonably
possible.
7. BILLING AND DISBURSEMENT
ADULTSIGHTS
reserves the right to determine the manner in which payments will be processed.
Disbursements are generally made twice per month for commissions earned during
the preceding period.
8. representations and Warranties
Affiliate warrants
that Affiliate is the sole owner of any and all necessary rights, title and
interest to the content not provided by ADULTSIGHTS, but contained on the
Affiliate’s web site such as text, images, logos, graphics and functional
elements. Affiliate further warrants that such content complies with this
Agreement, and that such content is free of claims to the content by third
parties. Affiliate further warrants that Affiliate is at least eighteen (18)
years of age, and can submit proof of age upon request by ADULTSIGHTS. Finally, Affiliate represents that each
Affiliate web site is in full compliance with Section 2257 of Title 18, United
States Code, the “Records Keeping and Labeling Act.” Affiliate acknowledges that it is Affiliate’s legal obligation to
comply with the disclosure provisions of the Records Keeping and Labeling Act,
and that Affiliate must conspicuously identify a records custodian and records
address for each image appearing on the Affiliate’s web site. Affiliate represents and warrants that any
and all content it provides on its site is compliant with Title 18 U.S.C.
§2257, and that all models depicted thereon were at least 18 years of age when
the content was taken.
9. ACCEPTABLE USE POLICY for Affiliates
Affiliate agrees
to be bound by the following general policies in connection with all content with
which ADULTSIGHTS promotional materials, links or logos are associated:
·
Illegal content is strictly forbidden. Illegal content
includes, but is not limited to: child pornography, incest, warez content,
actual or simulated rape, bestiality, torture, fisting, urination, programs
containing viruses, pirated software, wire fraud, drug trafficking and/or
violations of international export control laws.
·
ADULTSIGHTS reserves the right to review and/or reject
any content affiliation created by Affiliate.
·
ADULTSIGHTS may not be promoted on any site that
encourages password trading or hacking.
·
Affiliate may not attempt to cheat, defraud or mislead
ADULTSIGHTS in any way.
·
Any fraudulent, deceptive or unfair transactions or
trade practices are strictly forbidden.
The Affiliate agrees to fully comply with the United States Federal
Trade Commission (“FTC”) statutes and regulations (if Affiliate does business
in the United States or with United States based customers), and any related
rules, policies, and advisory opinions issued by the FTC.
·
Affiliate shall not engage in any activities that may
be harmful to the reputation, image, goodwill or reputation of ADULTSIGHTS.
·
Violation of the restricted non-exclusive license
provided in this Agreement is prohibited.
·
Affiliate must use the HTML code provided by
ADULTSIGHTS to promote its service. Any
Affiliate found using any wording other than the HTML code that is provided to
promote the ADULTSIGHTS Service, or found on the join page, may result in
immediate termination of this Agreement and all funds earned to be forfeited.
If you desire to have additional wording on your site referencing the
ADULTSIGHTS Service, please contact compliance@adultsights.com
for approval.
·
Affiliate may not circumvent, or attempt to circumvent,
the access screen requiring users to enter their birth date and requiring
agreement to the ADULTSIGHTS Terms and Conditions.
·
ADULTSIGHTS enforces a strict, zero tolerance
policy with respect to child pornography. No site may use models under the age
of eighteen (18) or suggest that its models are under the age of eighteen (18),
either through text or other implication. Any Affiliate suspected of violating
this zero tolerance provision shall be terminated from the Program.
·
Affiliate’s web sites must contain all information
required by 18 U.S.C. §2257. Affiliate is solely responsible for
obtaining and properly maintaining all records and/or information that is
required under the Record Keeping provisions of 18 U.S.C. §2257.
·
Affiliate shall keep all communications sent by Company
private, and shall not share or disclose the contents of such communications
without the express, written permission of Company.
·
Affiliates may not “hotlink” to any of ADULTSIGHTS
images, banners, and/or graphics.
·
Affiliates may not solicit or permit any minor to
become a customer of the Websites.
·
Affiliate may not harvest or otherwise collect
information about others, including but not limited to e-mail addresses, except
as needed to operate Affiliate site and as permitted in Affiliate site’s
privacy policy (if any);
·
Affiliates agree to indemnify and hold ADULTSIGHTS
harmless from any and all liabilities, claims, damages (including attorney’s
fees), threatened or incurred as a result of Affiliate’s activities.
·
ADULTSIGHTS shall retain the discretion to interpret,
modify, terminate and/or enforce any of the general policies for Affiliates.
● For a list of banned names and wording, please visit
http://www.adultsights.com/legal.html
Suspected
violation of any of the General Policies may result in termination from the
Program, and forfeiture of any future commissions or payments; whether earned
or unearned.
10. PROMOTIONAL RESTRICTIONS AND SPAM
Affiliate may use
any reasonable promotional tool desired, with the following exceptions:
A. SPAM.
The Affiliate agrees not to use the facilities and capabilities of
ADULTSIGHTS to solicit the performance of any activity that is prohibited by
the CAN-SPAM Act dealing with illegal distribution of Unsolicited Commercial
Bulk Email (“UCBE”), commonly known as "spam," nor shall Affiliate
forge or use without authorization, any mail header information. Affiliate agrees to the Site’s Spam Policy,
found here: http://www.adultsights.com/spampolicy.html which is hereby incorporated by
reference.
B. NO DECEPTIVE ADVERTISING. All forms of
deceptive or unfair advertising are prohibited. Any Affiliate who is uncertain as to the requirements of federal
advertising law should obtain legal advice before engaging in any
promotion. More information about
deceptive trade practices can be found here:
www.FTC.gov.
11. Metatags
Affiliate agrees
not to utilize any false, misleading or infringing metatags tied to the
Affiliate’s site. In addition, Affiliate agrees not to utilize any metatags
that would imply or suggest that underage or illegal content may be found on
the submitted site.
12. DIGITAL
MILLENNIUM COPYRIGHT ACT COMPLIANCE
The Site respects
the intellectual property rights of others and asks users of our services to do
the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), all
notifications of claimed infringement of copyrights occurring on the Site or
the websites of subscribers should be sent to the Designated Agent of the Site:
Lawrence G.
Walters, Esquire
781 Douglas Avenue
Altamonte Springs,
FL 32714
Phone: (407) 389-4529
Fax: (407) 774-6151
Please do not send
other inquires or information to our Designated Agent.
Please be advised that knowingly making a material misrepresentation concerning
claimed copyright infringement may subject the party asserting the claim to
severe civil penalties, including damages, costs, and attorneys fees incurred
by the alleged infringer or the Site.
The Site reserves the right to modify, alter or add to this policy, and
all users should regularly check back to these Terms and Conditions to stay
current on any such changes.
A. Notice of
Claimed Infringement. If you believe
that your work has been copied in a way that constitutes copyright
infringement, or your intellectual property rights have been otherwise
violated, please provide the Site the following information:
(i) an
electronic or physical signature of the person authorized to act on behalf of
the owner of the copyright or other intellectual property interest;
(ii) a
description of the copyrighted work or other intellectual property that you
claim has been infringed. If the
copyrighted work is located on a web page, please provide the specific address
of the web page on which it is located;
(iii) a
description of where the material that you claim is infringing or the subject
of infringing activity is located, including the address of the specific web
pages containing the allegedly infringing material;
(iv) your address, telephone number, and email
address where you may be
contacted;
(v) a
statement by you that you have a good faith belief that the disputed use is not
authorized by the copyright owner, its agent, or the law; and
(vi) a
statement by you, made under penalty of perjury, that the above information in
your Notice is accurate and that you are the copyright or intellectual property
owner or authorized to act on the copyright or intellectual property owner’s
behalf.
B. Notice and
Takedown Procedure. The Site implements
the following “notice and takedown” procedure upon receipt of a written
notification properly providing all of the information identified in (i)-(vi)
above ("Notification"). The
Site reserves the right at any time to disable access to, or remove any
material or activity accessible on or from any Site or any Materials claimed to
be infringing or based on facts or circumstances from which infringing activity
is apparent. It is the firm policy of the Site to terminate the account
of repeat copyright infringers, when appropriate, and the Site will act
expeditiously to remove access to all material that infringes on another’s
copyright, according to the procedure set forth in 17 U.S.C. §512 of the
DMCA. The Site’s DMCA Notice Procedures are set forth in the preceding
paragraph. If the notice does not comply with Paragraph 19 and §512 of the
DMCA, but does comply with three requirements for identifying sites that are
infringing according to §512 of the DMCA, the Site shall attempt to contact or
take other reasonable steps to contact the complaining party to help that party
comply with the notice requirements. When the Designated Agent receives a valid
notice, the Site will expeditiously remove and/or disable access to the
infringing material and shall take reasonable steps to promptly notify the
affected user/subscriber that the Site has removed or disabled access to the
allegedly infringing material. The Site
will then forward a copy of the written notification to the accused subscriber,
and inform the accused subscriber of Counter Notification procedures. In the event Affiliate’s site is taken down
pursuant to the DMCA, re-bills attributed to the noticed site will be suspended
during the “take down” period.
C. Counter
Notification Procedures. The affected
user may submit a Counter Notification to the Site’s Designated Agent, which
must be in writing (email, fax, or letter), containing a statement made under
penalty of perjury that must provide the following information:
(i) A physical or electronic signature of the subscriber;
(ii) Identification of the material
that has been removed or to which access has
been disabled and the location at which the material appeared
before it
was removed or access to it was disabled;
(iii)
A statement under penalty of perjury that the
subscriber has a good faith belief that the material was removed or disabled as
a result of mistake or misidentification of the material to be removed or
disabled; and
(iv)
The subscriber's name, address, and telephone number,
and a statement that the subscriber consents to the jurisdiction of the United
States District Court for the judicial district in which the subscriber's
address is located, or if the subscriber's address is outside of the United
States, the United States District Court for any judicial district as directed
by the Site’s Terms and Conditions, and that the subscriber will accept service
of process from the person who provided Notification or from an agent of such
person.
After the
Designated Agent receives the Counter Notification, it will replace the
material at issue within 10-14 days after receipt of the Counter Notification
unless the Designated Agent receives notice that a court action has been filed
by the complaining party seeking an injunction against the infringing activity.
D. Repeat Offenders. Any website deemed to be a repeat violator of the DMCA will be terminated from the Program.
E. Banned
Websites. Pending receipt of a Counter Notification, participation of the
website in the Program will be suspended. A website will be permanently
prohibited from participating in the ADULTSIGHTS Program upon receipt by the
Company of a second Notification. If
any affiliate changes a site ID or engages in any other conduct to circumvent
these policies and the proper enforcement of them, the site will be denied
participation in the ADULTSIGHTS program.
F. Banned Affiliate. If an affiliate, identified by
either the webmaster's name, vendor ID or common ownership entity, has had
three (3) websites which have been denied participation in the ADULTSIGHTS
Program in accordance with this policy, that affiliate will be denied
participation and banned without further notice. The Company reserves the right
to deny participation in its Program of any Affiliate or website in its
discretion.
13. CONFIDENTIALITY AND PRIVACY POLICY
A. “Confidential
Information” shall mean any confidential technical data, trade secret,
intellectual property, know-how or other confidential information disclosed by
any party hereunder in writing,
orally, or by drawing or other form and which shall be marked by the disclosing
party as “Confidential” or “Proprietary.”
If such information is disclosed orally, or through demonstration, in
order to be deemed Confidential Information, it must be specifically designated
as being of a confidential nature at the time of disclosure and reduced to
writing and delivered to the receiving party within ten (10) days of such
disclosure.
B. Notwithstanding
the foregoing, Confidential Information shall not include information which:
(i) is known to the receiving party at the same time of disclosure or becomes
known to the receiving party without breach of this Agreement; (ii) is or
become publicly known through no wrongful act of the receiving party or any
subsidiary of the receiving party; (iii) is rightfully received from a third
party without restriction on disclosure; (iv) is independently developed by the
receiving party or any of its subsidiary; (v) is furnished to any third party
by the disclosing party without restriction on its disclosure; (vi) is approved
for release upon a prior written consent of the disclosing party; (vii) is
disclosed pursuant to judicial order, requirement of a governmental agency or
by operation of law.
C. The receiving
party agrees that it will not disclose any Confidential Information to any
third party and will not use Confidential Information of the disclosing party
for any purpose other than for the performance of the rights and obligations
hereunder during the term of this Agreement and for a period of five (5) years
thereafter, without the prior written consent of the disclosing party. The receiving party further agrees that
Confidential Information shall remain the sole property of the disclosing party
and that it will take all reasonable precautions to prevent any unauthorized
disclosure of Confidential Information by its employees. The disclosing party
shall grant no license to the receiving party with respect to Confidential
Information disclosed hereunder unless otherwise expressly provided herein.
D. Upon the
request of the disclosing party, the receiving party will promptly return all
Confidential Information furnished hereunder and all copies thereof.
E. The Parties
agree that all publicity and public announcements concerning the formation and
existence of this Agreement shall be jointly planned and coordinated by and
among the Parties. Neither party shall
disclose any of the specific terms of this Agreement to any third party without
the prior written consent of the other party, which consent shall not be
withheld unreasonably. Notwithstanding the foregoing, any party may disclose
information concerning this Agreement as required by the rules, orders,
regulations, subpoenas or directives of a court, government or governmental
agency, after giving prior notice to the other party.
F. If a party
breaches any of its obligations with respect to confidentiality and
unauthorized use of Confidential Information hereunder, the non-breaching party
shall be entitled to equitable relief to protect its interest therein,
including but not limited to injunctive relief, as well as money damages
notwithstanding anything to the contrary to the contrary contained herein.
G. Except as
otherwise set forth in this Agreement, ADULTSIGHTS shall be entitled to make
any public statement, press release or other announcement relating to the
Website without the prior written approval of Affiliate.
H. ADULTSIGHTS
honors the privacy of its Affiliate’s personal information. Our Privacy Policy
is hereby incorporated by reference. For more information on our Privacy
Policy, please contact us.
14. INTELLECTUAL PROPERTY RIGHTS
A. The parties
agree that: (i) each party’s marks are and shall remain the sole property of
that party; (ii) nothing in this Agreement shall convey to either party any
right of ownership in the party’s marks; (iii) neither party shall now or in
the future contest the validity of the other party’s marks; and (iv) neither
party shall in any manner take any action that would impair the value of, or
goodwill associated with, such marks. The parties acknowledge and agree that
all use of the other party’s marks by a party shall inure to the benefit of the
party whose marks are being used.
B. Each party
hereby grants the other party, during the term of this Agreement, a
non-exclusive, non-transferable license to use that party’s trade names,
trademarks, service names, copyrights, and similar proprietary marks as is
reasonably necessary to perform its obligations under this Agreement, provided,
however, that any promotional materials containing a party’s proprietary marks
will be subject to that party’s prior, written approval.
C. Each party
agrees not to use the other party’s proprietary marks in a manner that
disparages the other party or its products or services, or portrays the other
party or its products or services in a false, competitively adverse or poor
light. Each party will comply with the other party’s requests as to the use of
the other party’s proprietary marks and will avoid any action that diminishes
the value of such marks. Each party’s unauthorized use of the other’s
proprietary marks is strictly prohibited.
D. At any time,
ADULTSIGHTS may, at its sole discretion, require a copy of any and all legal
documentation showing rightful ownership, or licensed distribution for any item
displayed on the Affiliate’s web site so as to resolve any copyright or other
legal claims that may arise. If
Affiliate is unable to provide ownership or licensing information to the
complaining party and/or ADULTSIGHTS, then Affiliate must remove the
objectionable material, or face having the applicable pages taken down by
ADULTSIGHTS.
15. TERMINATION
The following
termination rights are in addition to the termination rights that may be
provided elsewhere in this Agreement.
Either party may immediately terminate this Agreement for any reason at
any time upon written notice to the other party. In the event that ADULTSIGHTS terminates this Agreement due to a
breach of any provision by Affiliate, Affiliate shall not be entitled to receive
any further commissions or payments, including commissions earned prior to the
date of termination. ADULTSIGHTS also
reserves the right to block any site that violates any of the above-stated
terms, or which, in ADULTSIGHTS sole discretion, it deems objectionable or
offensive, or otherwise violates a law or term of this Agreement.
16. DISCLAIMERS AND LIMITATIONS
Affiliate shall
remain solely responsible for the operation of its own site, and ADULTSIGHTS
shall remain solely responsible for operation of the Program. ADULTSIGHTS has
no responsibility for the development, content, operation and maintenance of
Affiliate’s site, or for any Materials that appear on Affiliate’s site. Each
party acknowledges that the other’s site may be subject to temporary shutdowns
dues to causes beyond the operating party’s reasonable control.
17. NO
WARRANTIES
WEBMASTER EXPRESSLY AGREES THAT WEBMASTER’S
USE OF THE SERVICES IS AT WEBMASTER SOLE AND EXCLUSIVE RISK. THE SERVICES ARE
PROVIDED ON AN “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. ADULTSIGHTS
EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. ADULTSIGHTS
MAKES NO WARRANTY THAT THE SERVICES WILL MEET WEBMASTER REQUIREMENTS, OR THAT
THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES ADULTSIGHTS MAKE ANY WARRANTY AS TO
THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE
ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES OR
THAT DEFECTS IN ANY SOFTWARE, HARDWARE OR THE SERVICES WILL BE CORRECTED.
WEBMASTER UNDERSTANDS AND AGREES THAT ANY USE WEBMASTER MAKES OF ANY MATERIAL
AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS
AT WEBMASTER’S OWN DISCRETION AND RISK, AND THAT WEBMASTER WILL BE SOLELY
RESPONSIBLE FOR ANY DAMAGE TO WEBMASTER’S COMPUTER SYSTEM OR LOSS OF DATA THAT
RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.
18. INDEMNIFICATION
Affiliate agrees to defend, indemnify, and hold
ADULTSIGHTS and its affiliates, officers, directors, shareholders and
attorneys, harmless from and against any and all claims and liabilities,
including reasonable attorneys’ and experts’ fees, related to or arising from
(a) any breach of Affiliate’s covenants under this Agreement; (b) Affiliate’s
use (or misuse) of the Services; (c) all conduct and activities occurring under
Affiliate’s user ID and password; (d) any item or service sold or advertised in
connection with Affiliate Content or Affiliate’s information and data; (e) any
defamatory, libelous or illegal material contained within Affiliate Content or
Affiliate’s information and data; (f) any claim or contention that Affiliate
Content or Affiliate’s information and data infringes any third party’s patent,
copyright or other intellectual property rights or violates any third party’s
rights of privacy or publicity; (g) third party access or use of Affiliate
Content or Affiliate’s information and data; or (h) any violation of this
Agreement. ADULTSIGHTS reserves the right, at its own expense, to participate
in the defense of any matter otherwise subject to indemnification from
Affiliate, but shall have no obligation to do so. Affiliate shall not settle
any such claim or liability without the prior written consent of ADULTSIGHTS,
which shall not be unreasonably withheld.
The Affiliate
understands that ADULTSIGHTS will take drastic measures to protect itself from
any legal or civil litigation including, but not limited to, removing a
Affiliate’s web page(s) or site(s) from its servers for any reason deemed
appropriate by ADULTSIGHTS. Affiliate
also understands that ADULTSIGHTS will charge, on an hourly basis, for any and
all time spent responding to any third party complaints, disputes, copyright
claims or actions involving Affiliate or Affiliate’s web sites.
19. RELATIONSHIP OF THE PARTIES
The relationship
between ADULTSIGHTS and Affiliate under this Agreement is that of independent
contractors and neither shall be, nor represent themselves to be, a partner,
franchiser, franchisee, broker, employee, servant, agent, or representative of
the other for any purpose whatsoever.
No party is granted any right or authority to assume or create any obligation
or responsibility, express or implied, on behalf of, or in the name of, another
party or to bind another in any manner or thing whatsoever.
20. FORCE
MAJEURE
Neither party will be held liable for, or will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence, including but not limited to acts of God; war, riot, embargoes, acts of civil or military authority, or terrorism; fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, including Y2K errors or omissions. If any force majeure event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.
21.
NOTICE AND PAYMENT:
A. Any notice or payment required to be given under this Agreement may be provided by email to a functioning email address of the party to be noticed, or personal delivery by commercial carrier such as FedEx or Airborne.
B. Either party may change the address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
C. When Notice is Effective. Notices shall be deemed effective upon delivery. Notices delivered by overnight carrier (e.g., United States Express Mail or Federal Express) shall be deemed delivered on the business day following mailing. Notices mailed by United States Mail, postage prepaid, registered or certified with return receipt requested, shall be deemed delivered five (5) days after mailing. Notices delivered by any other method shall be deemed given upon receipt. Notices by email and facsimile transmission, with confirmation from the transmitting machine that the transmission was completed, are acceptable under this Agreement provided that they are delivered one (1) hour after transmission if sent during the recipient's business hours, or 9:00 a.m. (recipient's time) the next business day. Either Party may, by giving the other Party appropriate written notice, change the designated address, fax number and/or recipient for any notice or courtesy copy, hereunder.
D. Any correctly addressed notice that is refused, unclaimed, or undeliverable, because of an act or omission of the Party to be notified shall be deemed effective as of the first date that said notice was refused or deemed undeliverable by the postal authorities, messenger, facsimile machine, email server, or overnight delivery service.
22. JURISDICTION/DISPUTES
This Agreement and
all matters arising out of or otherwise relating to these terms and conditions
shall be governed by the laws of the State of New Jersey, excluding its
conflict of law provisions. The parties agree that the United Nations
Convention on Contracts for the International Sale of Goods is specifically
excluded from application to these Terms and Conditions. The parties hereby submit to the personal
jurisdiction of the state and federal courts of the State of New Jersey for
resolution of all disputes. Exclusive
venue for any litigation or arbitration permitted under this Agreement shall be
with the state and federal courts located in Monmouth County, New Jersey.
23. ASSIGNABILITY
Neither party may
assign this Agreement or the rights and obligations hereunder to any third
party or entity.
24. WAIVER
No waiver by
either party of any default shall be deemed as a waiver of prior or subsequent
default of the same of other provisions of this Agreement.
25. SEVERABILITY
If any term,
clause or provision hereof is held invalid or unenforceable by a court of
competent jurisdiction, such invalidity shall not affect the validity or
operation of any other term, clause or provision and such invalid term, clause
or provision shall be deemed to be severed from this Agreement.
26. INTEGRATION
Except where
stated to the contrary herein, this Agreement constitutes the entire
understanding of the parties, and revokes and supersedes all prior agreements
between the parties and is intended as a final expression of their Agreement.
It shall not be modified or amended except in writing signed by the parties
hereto and specifically referring to this Agreement. This Agreement shall take
precedence over any other documents which may conflict with this Agreement.
27. ATTORNEYS FEES
In the event any
litigation arising out of this Agreement, the prevailing party shall be
entitled to an award of reasonable attorneys fees, including attorneys fees on
appeal.
28. DISCLAIMER
Other than those
set forth herein, the parties make no other warranties or representations
including warranties of merchantability or fitness for a particular
purpose. Neither party represents the
other. Both parties have had an
opportunity to seek legal counsel of their choice.
29. BINDING AGREEMENT
The parties
acknowledge the legally binding nature of this Agreement. By checking the "I agree to the terms
of the ADULTSIGHTS Affiliate Agreement", and clicking on the “START MAKING
MORE MONEY NOW” button on the following web page: http://www.adultsights.com/webmaster.cfm
or from within the stats area for the ADULTSIGHTS service, you are
affirmatively stating that you have read and understand the terms set forth
herein and that you agree to be bound by the terms hereof. You hereby adopt the /s/ mark appearing on
the signature line below, as your electronic signature on this document.
IN WITNESS WHEREOF, the Parties hereto,
intending to be legally bound hereby, have each signed this document
electronically pursuant to the E-SIGN Act.
_/s/______________________
ADULTSIGHTS
_/s/________________________
Affiliate
This
document was prepared by Lawrence G. Walters, Esq., of www.FirstAmendment.com.