ADULTSIGHTS.COM

AFFILIATE AGREEMENT

 

                                                          Last Modified Date:Febuary 6, 2006

 

 

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

 

  1. From time to time, We may revise this Agreement.  We reserve the right to do so, and You agree that We have this unilateral right. You agree that all modifications or changes to this agreement are in force and enforceable immediately upon posting.  The updated or edited version supersedes any prior versions immediately upon posting, and the prior version is of no continuing legal effect unless the revised version specifically refers to the prior version and keeps the prior version or portions thereof in effect.

 

  1. We agree that if we change anything in this Agreement, we will change the “last modified date” at the top of this Agreement. You agree to periodically re-visit this web page, and to use the “refresh” button on Your browser when doing so. You agree to note the date of the last revision to this agreement.  If the “last modified” date remains unchanged from the last time You reviewed this Agreement, then You may presume that nothing in the Agreement has been changed since the last time You read it.  If the “last modified” date has changed, then You can be certain that something in the Agreement has been changed.

 

  1.  Waiver – if You fail to periodically review this Agreement to determine if any of the terms have changed, You assume all responsibility for such omission and You agree that such failure amounts to Your affirmative waiver of Your right to review the amended terms.  We are not responsible for Your neglect of Your own legal rights. 

 

 

 

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

Notice@DMCANotice.com

 

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.