Member Agreement
Last Revised March 1, 2011
Welcome to the Member Agreement. This is a legal agreement between you and NF Entertainment, Inc., doing business as NiteFlirt and hereinafter referred to as "NiteFlirt." If NiteFlirt accepts your Member Sign-up Form, you will become a "Member" having access to the Site and Speaker Services only under the policies, terms and conditions below. For convenience, we will refer to the NiteFlirt.com website, Mail (any email you send from your Member account to another Member), phone services (including services available through 1-800-TO-FLIRT and other numbers that NiteFlirt maintains for access by Members) and any content therein provided by NiteFlirt as the "Site." We will refer to any information, entertainment services and other products or services you may receive from other Members (in their role as Speakers) or their listings on the Site as the "Speaker Services" or "Flirt Services." Members who enter into the Member Agreement and those who solicit or receive Speaker Services from other Members will be referred to as "Members." Members who create listings and/or provide Speaker Services will also be referred to as "Speakers" or "Flirts."
The policies, terms and conditions below limit NiteFlirt's liability and obligations to you and allow NiteFlirt to change, suspend or terminate your access to and use of the Site and Speaker Services. We urge you to carefully read the following terms and conditions, and all policies referenced below or elsewhere on the Site. The following policies and rules are incorporated into the Member Agreement by reference and provide additional terms and conditions: Age Verification Agreement, Flirt Policy, Payment Policy, Privacy Policy, Feedback Policy, Photo Policy, Anti-Spam Policy, Affiliate Agreement, and Forum Policy. To the extent that there are any conflicts between the terms or conditions in such related policies and this Member Agreement, the terms and conditions of the Member Agreement shall govern.
YOU UNDERSTAND THAT BY CLICKING THE BUTTON TO CONTINUE ON THE REGISTRATION PAGE, BY USING THE SITE AND ANY SPEAKER SERVICES INCLUDING ANY CONTENT PROVIDED THEREIN, BY INITIATING ANY FORM OF COMMUNICATION WITH A MEMBER OR BY POSTING ANY LISTINGS ON THIS SITE, YOU ARE AGREEING TO BE BOUND BY THIS MEMBER AGREEMENT THAT BINDS YOU IN THE SAME WAY THAT A PAPER CONTRACT BINDS YOU. ALL USE OF THE SITE AND SPEAKER SERVICES IS SUBJECT TO THE TERMS OF THIS MEMBER AGREEMENT AND THE POLICIES, TERMS AND INSTRUCTIONS REFERENCED IN THE SITE, WHICH ARE INCORPORATED AND CONSIDERED AS PART OF THESE TERMS. YOU MUST ACCEPT WITHOUT MODIFICATION ALL OF THE TERMS, CONDITIONS, POLICIES AND NOTICES REFERENCED IN THIS MEMBER AGREEMENT IN ORDER TO ACCESS AND USE THE SITE AND SPEAKER SERVICES. IF YOU DO NOT ACCEPT THIS MEMBER AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR SPEAKER SERVICES.
1. Eligibility to use the Site and Speaker Services is limited.
The Site and Speaker Services are available only to persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. Without limiting the foregoing, the Site and Speaker Services are not available to temporarily or indefinitely suspended Members.
You shall not use the Site or become a Member if you are located or reside in a country (a) in which use or participation is prohibited by law, decree, regulation, treaty or administrative act or (b) is prohibited from entering into trade relations with the United States or its citizens. Such countries include, without limitation, Afghanistan, Burma, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, Syria and Yugoslavia.
2. You use or provide Speaker Services, and consult with Speakers, at your own risk.
(a) NiteFlirt does not evaluate, provide, produce or control the Speaker Services, or information or exchanges between Members, in any manner. NiteFlirt does not itself provide any information, entertainment services or other products or services, nor verify, guarantee or make any representations regarding the identity or qualifications of any Member. Further, NiteFlirt does not make editorial or managerial decisions concerning content, sexually explicit or otherwise. Nor will NiteFlirt be held responsible for any Speaker's failure to comply with laws or regulations concerning the content of listings. Instead, NiteFlirt acts as a technology service that allows Members to share information, entertainment services or other products or services among themselves. Although NiteFlirt helps its Members connect with each other, it does not monitor the advice exchanged, and, as a result, NiteFlirt does not control, nor is responsible for, the truth, accuracy, completeness, safety, timeliness, quality, appropriateness, legality or applicability of anything said or written by Members, including without limitation any information contained in Speaker listings or made available through this Site. The Site is not intended for use as a payment service to exchange goods. NiteFlirt is not responsible for use or exchange of any information, files or goods between Members. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Site and Speaker Services, in evaluating the qualifications of, and statements made by, Members in listings or through the Member feedback system, and in disclosing personal information to other Members. NiteFlirt recommends that you do not disclose personal contact information to Members. If you do, you do so at your own risk. NiteFlirt assumes no responsibility for monitoring any Member feedback or otherwise policing its Members in any way. If you ever believe that a Member has violated the law or is defrauding, threatening or endangering anyone, NiteFlirt urges you immediately to contact the police directly for help. In addition NiteFlirt does not recommend or encourage Members to use the Site or Speaker Services to solicit other Members to meet with them in person.
(b) NiteFlirt does not refer, endorse, recommend, verify, evaluate or guarantee any information, entertainment services or other products or services provided by Speakers or Members, or any specific Member, Speaker or Speaker Services, and nothing shall be considered as a referral, endorsement, recommendation or guarantee of any Speaker or group of Speakers by NiteFlirt. You must use your judgment to determine whether to initiate, receive and/or discontinue use of the Speaker Services. Members who initiate, receive and/or discontinue use of the Speaker Services do so entirely at their own risk, and NiteFlirt bears no responsibility in this regard. In accordance with its Privacy Policy. NiteFlirt does not monitor telephone conversations between Members. However, NiteFlirt reserves the right to contact Members and review Mail without revealing its identity, in order to evaluate compliance with the rules and policies set forth in this Member Agreement and to take other action as set forth in the Privacy Policy. Therefore, we urge you to review and understand the Privacy Policy. As part of this Member Agreement you are agreeing to the terms and conditions set forth in the Privacy Policy and are obliged to abide by the agreements contained in that document.
(c) If you have a dispute with another Member, or suffer any harm arising out of or connected with any Speaker Services, you hereby waive all claims against and release NiteFlirt (and its subsidiaries, employees, officers, directors, shareholders, suppliers, joint venturers and agents) from any and all liability for claims, demands, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any Speaker Services or with regard to such disputes. If you are a California resident, you waive your rights under California Civil Code §1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations waive their rights under analogous laws, statutes or regulations.
3. NiteFlirt may modify this Member Agreement, or suspend or terminate your use of the Site, at any time without notice to you.
(a) NiteFlirt reserves the right in its sole discretion to modify or discontinue the Site, or modify the terms and conditions of your use of the Site, without notice. All modified terms and conditions will be effective thirty (30) days after they are initially posted on the Site. Changes to the Payment Policy are effective after NiteFlirt provides Speakers with at least fourteen (14) days notice of the changes by emailing Speakers. If any modification is not acceptable to you, your only recourse is to cease using the Site and Speaker Services. By continuing to use the Site or any Speaker Services following any posting of a new Member Agreement or policies on the Site, you accept and agree to be bound by the new Member Agreement or policies.
(b) Without limiting other remedies, NiteFlirt may at any time suspend or terminate your membership and refuse to provide access to the Site without reason or notice to you. In addition, NiteFlirt may notify your bank and/or authorities or take any actions it deems appropriate without notice to you, (i) if NiteFlirt suspects that you have failed to comply with any provision of this Member Agreement or any policies or rules established by NiteFlirt; (ii) if NiteFlirt is unable to verify or authenticate any billing or payment information you provide to NiteFlirt; or (iii) if NiteFlirt suspects that your actions may be illegal or cause liability, harm or disruption for you, other Members, NiteFlirt or the Site. You have the right to cancel your membership in NiteFlirt by filling out the Customer Support Form and selecting "Cancel Account" in the subject line. Any suspension, termination or cancellation will not affect your obligation to pay any amounts due to NiteFlirt.
4. The Site is only a venue for Member listings.
NiteFlirt acts only as an interface to facilitate communications initiated between Members. As a Member, you are not an employee, agent or contractor of NiteFlirt, and you shall not represent that you are any of the foregoing. You are solely responsible for all equipment necessary to access and use the Site and Speaker Services, and for reporting and payment of all taxes associated with fees transferred to you by NiteFlirt.
5. You are solely responsible for all use made of the Site and Speaker Services under your password and Member account information and agree to pay for all Speaker Services purchased using your password and Member account information.
(a) The rates for Speaker Services are as set forth in the applicable Speaker listing. "Transaction" means any live or recorded call through the Site initiated using your password and Member account information and any Mail response sent to your Mail account in response to a request for information, entertainment services or other products or services from a Speaker who lists a fee for email responses (each a "Paid Mail"). You hereby authorize NiteFlirt to collect fees for each Transaction by debiting your Member account immediately upon conclusion of each Transaction, regardless of quality or completeness. Fees for live and recorded calls are calculated based on the per-minute rate listed and the duration of the call, or from time to time may be offered by NiteFlirt for a single price listed for a bulk package of time. Time for calls sold in bulk have an expiration date; and you will not be entitled to receive a refund for any time remaining after the expiration date for the bulk minutes. Fees for recorded calls are determined based on the listed fee. Fees for Paid Mail are collected immediately upon acceptance of the Paid Mail, regardless of quality or completeness, by the receiving Member and are determined as set forth in the Speaker listings. When purchasing a package of bulk minutes, you authorize NiteFlirt to authorize your credit card for the entire price of the bulk package prior to connecting your next call and to subsequently charge your card for the entire cost of the bulk package once your call is connected. You authorize NiteFlirt, directly or through third parties, to make any inquiries we consider necessary to validate your Member account and/or listing information. This may include ordering a credit report and performing other credit checks or otherwise verifying the information you provide.
(b) You agree to maintain the confidentiality of your password and Member account information and to supervise all activities that occur under your Member name, password or Member account, including, but not limited to, any and all usage of the Site by other persons under your Member name and password. You agree that you will not permit, enable, introduce or facilitate (i) non-Members having access to or use of the Site or Speaker Services in any manner without such individuals first becoming Members and (ii) other Members to use a specific Speaker Service at the same time that you are doing so.
(c) You agree that NiteFlirt is not responsible for any loss that you may incur as a result of any unauthorized person using your Member account or password. You agree that NiteFlirt may use information provided by you as described in the Privacy Policy.
(d) Based on Member account use and other factors identified by NiteFlirt in its sole discretion, NiteFlirt may require verification of your credit, identity and/or other background information in order for you to continue using the Site. In such event, you agree to provide NiteFlirt with additional information that may be requested, you consent to NiteFlirt's disclosure of your personal information to third-party service providers in order to verify your credit, identity and/or other background information, and you authorize NiteFlirt to obtain a consumer credit report from consumer credit reporting agencies and to verify your identification.
6. In using or accessing the Site or Speaker Services, you agree to comply with the following:
(a ) You (as a Speaker providing Speaker Services) are solely responsible for the content provided and the content on listings created under your Member account.
(b) You (as a Member receiving Speaker Services) will not record or otherwise store any live or pre-recorded voice Speaker Services that you receive through the Site. You (as an Speaker providing Speaker Services) will not record or otherwise store any calls you conduct with a Member. Notwithstanding the foregoing, Speakers may provide pre-recorded voice Speaker Services (each, a "Recorded Listing" as described further on the Help page of the Site) to Members in accordance with the Flirt Policy.
(c) You will not use the Site for any purpose that is unlawful, fraudulent or contrary to this Member Agreement and the policies of NiteFlirt, and you will cooperate fully with NiteFlirt to investigate any suspected unlawful, fraudulent or improper activity, including but not limited to granting authorized NiteFlirt representatives access to any password-protected portions of your Member account.
(d) You will not solicit or provide advice, directly or through writings, as to the value of securities or as to the advisability of investing in, purchasing or selling securities or any report or analysis concerning securities.
(e) You will conduct all for-fee communications that you have with other Members only through the Site, and you will not circumvent or attempt to circumvent the Site using third-party payment services.
(f) You will not use the Site in any manner that harasses another Member or could interfere with any other party's use or enjoyment of the Site. You will respect the privacy of others and not use the Site for unwelcome, rude or abusive communications.
(g) You will not attempt to gain unauthorized access to any Member account information, computer systems or networks associated with the Site.
(h) You will not attempt to obtain any information or materials relating to the Site through any means not intentionally made available through the Site.
(i) You will not "frame," "mirror" or otherwise copy any portion of the Site without NiteFlirt's express written authorization.
(j) You will continue to provide true, accurate and complete payment registration information and will maintain as current and promptly update your personal contact information that you provide to NiteFlirt, as applicable. You will not use false identities or impersonate any other person or use a name that you are not authorized to use.
(k) You will not use the Site to solicit Members, to promote any product or services other than the information services described in your Member listing which are provided through the Site, to provide any product or services related to, claiming success with or offering information regarding lottery numbers or for purposes of multi-level marketing proposals (for example, offering to help participants "get rich quickly," "lose weight now" or "make money surfing the Web").
(l) You will not transmit "junk mail," "spam," "chain letters" or unsolicited mass distribution of email or bulletin board postings, or transmit solicitation for employees, consultants, contractors or for participation on other websites. See our Anti-Spam Policy for further information.
(m) You will not use the Site to promote bonus items, giveaways, random drawings, prizes, contests or games of chance.
(n) You will not take any actions which may undermine the Member referral system, or the Member feedback system used to solicit feedback from Members, including without limitation leaving positive feedback for yourself or other Members, using secondary Member names or third parties or leaving negative feedback if a Member fails to perform some action that is outside the scope of the services described in his or her Member listing.
(o) You will not create obscene, offensive, tasteless, defamatory or hateful Member names or content for listings. In addition, obscenity and child pornography are prohibited on NiteFlirt because they violate the laws of the United States and many other countries.
(p ) You will adhere to all applicable laws and regulations governing your actions in connection with the Site and (as a Speaker providing Speaker Services) are responsible for meeting the requirements of applicable record keeping laws, including, but not limited to, meeting the requirements of 18 U.S.C. 2257 and related regulations.
(q) You will not encourage or instruct any other individual to do any of the foregoing or to violate any term of the Member Agreement and NiteFlirt policies.
7. As between the parties, NiteFlirt shall retain all ownership in the Site including all URLs and any content created or derived from the Site.
NiteFlirt shall own all right, title and interest in Speaker Services and the Site, including but not limited to, all methods, processes, content, formats, designs, URLs, buttons, phone numbers, toll free numbers and number extensions together with all inventions, patents, copyrights, trademarks and other intellectual property rights and derivative works and improvements pertaining thereto. No copyrights, patent rights, trademarks or licenses are conferred herein by NiteFlirt, either expressly or by implication.
You understand and agree that (i) You will have no right, title and interest to any of the toll free numbers, phone numbers or extension numbers assigned to You (ii) that NiteFlirt may change Your toll free number, phone numbers and/or extension number at any time in its sole and absolute discretion (iii) You will have no right, title and interest to any listing name in connection with NiteFlirt Services and (iv) that phone numbers, toll free numbers, extensions and listing names may be recycled by NiteFlirt to other users of NiteFlirt Services if You are not actively using them or Your agreement has been terminated. Further, You hereby grant to NiteFlirt, its distribution partners, affiliates and similar third party website/media providers of NiteFlirt's choice the right to use, copy, distribute, display or reference in any media form Your listing information, including without limitation, Your listing name, tags, descriptions, photos, NiteFlirt buttons, phone numbers and extensions.
8. If you act as a Speaker, you will comply with and be subject to NiteFlirt's Speaker Rules Policy and Payment Policy. NiteFlirt's Flirt Policy and Payment Policy are available on the Flirt Policy and Payment Policy pages, and are incorporated into this Member Agreement by reference.
9. Account Maintenance Fee.
NiteFlirt may charge an Account Maintenance Fee of two dollars ($2.00) per month for all Member accounts. However if the Member uses the Member account to purchase information, entertainment services or other products or services, then for a period of twelve (12) months from the date of such use, NiteFlirt may waive the Account Maintenance Fee for all active Member accounts.
10. NiteFlirt disclaims any warranties or representations regarding the Site and Speaker Services.
THE SITE AND ANY SPEAKER SERVICES OR GOODS OBTAINED THROUGH THE SITE ARE PROVIDED "AS IS" WITH NO WARRANTY OF ANY KIND. NITEFLIRT AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, SPEAKER SERVICES AND ALL COMMUNICATIONS BETWEEN MEMBERS MADE THROUGH THE SITE, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. In addition, NiteFlirt makes no representation or warranty that the operation of the Site will be error free. Some states do not allow the exclusion of warranty, so the above exclusions may not apply to you.
11. NiteFlirt's liability for your access to and use of the Site and Speaker Services is limited and you are responsible for your use of the Site.
UNDER NO CIRCUMSTANCES WILL NITEFLIRT OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SITE OR SPEAKER SERVICES, WHETHER OR NOT NITEFLIRT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NITEFLIRT AND ITS SUPPLIERS' AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (a) THE TOTAL FEES ACTUALLY EARNED BY NITEFLIRT FROM YOU (AFTER PAYMENTS TO SPEAKERS AND OTHER THIRD PARTIES) IN THE PREVIOUS TWELVE (12) MONTHS, AND (b) ONE HUNDRED DOLLARS ($100). NITEFLIRT WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusions may not apply to you.
YOU FURTHER AGREE TO HOLD HARMLESS, DEFEND AND INDEMNIFY NITEFLIRT, AND ITS EMPLOYEES, SUBSIDIARIES, AGENTS AND REPRESENTATIVES, FROM AND AGAINST ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF THE SITE OR PROVISION OF SPEAKER SERVICES, INCLUDING ANY LIABILITY OR EXPENSE ARISING FROM ALL CLAIMS, LOSSES, DAMAGES (ACTUAL AND CONSEQUENTIAL), SUITS, JUDGMENTS, LITIGATION COSTS AND ATTORNEYS' FEES, OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, FORESEEABLE AND UNFORSEEABLE, DISCLOSED AND UNDISCLOSED. In each case, NiteFlirt will provide you with written notice of such claim, suit or action. NiteFlirt shall have the right to withhold payments to you to offset liabilities and expenses covered hereunder.
12. NiteFlirt prohibits the unauthorized use of copyrighted materials and trademarks.
YOU SHALL NOT USE THE SITE OR ITS SPEAKER SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS, TRADEMARKS, OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
NiteFlirt has adopted and implemented a policy, stated below, that provides for the termination in appropriate circumstances of Members who infringe or are believed to be infringing the rights of copyright holders or of holders of federally registered trademarks (and unregistered trademarks in certain circumstances).
NiteFlirt Copyright and Trademark Related Policy:
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide NiteFlirt's Copyright Agent listed below with the following information required under 17 U.S.C. § 512:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at the Site;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit NiteFlirt to locate the material;
(d) Information reasonably sufficient to permit NiteFlirt to contact the complaining party, including a name, address, telephone number and, if available, an email address at which the complaining party may be contacted;
(e) A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
(f) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
NiteFlirt's Copyright Agent for notice of claims of copyright infringement on or regarding this Site can be reached as follows:
Copyright Agent
c/o NiteFlirt
182 Howard Street #418
San Francisco, CA 94105
Phone: (877) 527-2655
Email: copyright@niteflirt.com
Upon receipt of notice as described above, NiteFlirt will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged use from the Site, and/or termination of the Member's account.
If you believe that your federally registered trademark is being used by an Speaker or Member in a way that constitutes trademark infringement, please provide NiteFlirt's Trademark Agent with the following information:
(a) A physical or electronic signature of a person authorized to act on behalf of the registered trademark owner;
(b) Information reasonably sufficient to permit NiteFlirt to contact the registered trademark owner or its authorized agent, including a name, address, telephone number and, if available, an email address;
(c) Identification of the trademark(s) claimed to have been infringed, including a copy of each relevant federal trademark registration certificate(s);
(d) Information reasonably sufficient to permit NiteFlirt to identify the use being challenged by the registered trademark owner;
(e) A statement that the registered trademark owner has not authorized the challenged use, and that the registered trademark owner has a good-faith belief that the challenged use is not authorized by law; and
(f) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is the registered trademark owner or is authorized to act on behalf of the registered trademark owner.
Upon receipt of notice as described above, NiteFlirt will confirm the existence of the federal registration of the trademark in question and will take whatever action, in its sole discretion, it deems appropriate, including following confirmation of the existence of the federal registration, removal of the challenged use from the Site, with notice to the Speaker or Member in question, if, in NiteFlirt's sole discretion, NiteFlirt concludes that the mark or name is identical to the registered mark and is used in connection with goods and/or services covered by the trademark owner's federal registration, unless, prior to such removal, the Speaker or Member in question demonstrates that it has its own trademark registration or approved trademark application covering the use in question.
Notwithstanding the foregoing, NiteFlirt will comply as appropriate with the terms of any court order relating to the behavior of the challenged party identified in such court order.
NiteFlirt's Trademark Agent for notice of claims of trademark infringement on or regarding this Site can be reached as follows:
Trademark Agent
c/o NiteFlirt
182 Howard Street #418
San Francisco, CA 94105
Phone: (877) 527-2655
Email: copyright@niteflirt.com
13. Links to Other Websites.
The Site may provide links to websites other than NiteFlirt. Such links are provided for reference only, and NiteFlirt neither controls such websites nor endorses any of the material on any such websites or any association with their operators.
14. Notice.
Any notice or other communication to be given hereunder will be in writing and given (a) by NiteFlirt via facsimile, receipt confirmed, United States mail or email (in each case to the number or address that you provide), and (b) by you via email to privacy@niteflirt.com. The date of receipt shall be deemed the date on which such notice is transmitted in the case of facsimile or email, and five (5) days after receipt by the U.S. Postal Service in the case of United States mail.
15. No Assignment.
You shall not assign this Member Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of NiteFlirt. Any such purported assignment or delegation by you without the appropriate prior written consent of NiteFlirt will be null and void and of no force or effect, unless otherwise expressly consented to by NiteFlirt at its sole and absolute discretion. NiteFlirt may assign this Agreement or any rights hereunder without your consent.
16. Relationship of the Parties.
Notwithstanding any provision hereof, for all purposes of this Member Agreement each party shall be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and shall not bind nor attempt to bind the other to any contract.
17. Arbitration.
Any controversy or claim arising out of or relating to this Member Agreement, the breach thereof or its subject matter shall be settled by binding arbitration in accordance with the consumer commercial arbitration rules of the American Arbitration Association. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in San Francisco, California, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Notwithstanding anything to the contrary, NiteFlirt, the Member or any other party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
18. You consent to the use of (a) electronic means to complete this Member Agreement, to use the Site and Speaker Services and to provide you with any notices given pursuant to this Member Agreement, and (b) electronic records to store information related to this Member Agreement or your use of the Site.
You can request a copy in paper form of this Member Agreement and any other records relating to this Member Agreement or your use of the Site by sending a written request to NiteFlirt, 182 Howard Street, #418, San Francisco, CA 94105. You understand and agree that this Member Agreement and any notices given pursuant to this Member Agreement are enforceable in electronic format.
19. Miscellaneous.
If any provision of this Member Agreement is held to be invalid or unenforceable, such provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remaining provisions shall be enforced. NiteFlirt's failure to act with respect to a breach by you or others does not waive NiteFlirt's right to act with respect to subsequent or similar breaches. The failure of NiteFlirt to exercise or enforce any right or provision of these terms and conditions shall not constitute a waiver of such right or provision. This Member Agreement shall be governed by and interpreted in accordance with the laws of the State of California. The parties acknowledge that this Member Agreement evidences a transaction involving interstate commerce. The Federal Arbitration Act shall govern the interpretation, enforcement and proceedings pursuant to the arbitration clause in this Member Agreement. You agree that this Member Agreement and the Member rules and restrictions and policies contained herein, and NiteFlirt's enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and NiteFlirt. This Member Agreement together with the rules and policies of NiteFlirt constitutes the entire agreement between NiteFlirt and you with respect to the subject matter hereof.
© 2013 NF Entertainment, Inc. All rights reserved. Trademark Notice
Welcome to the Member Agreement. This is a legal agreement between you and NF Entertainment, Inc., doing business as NiteFlirt and hereinafter referred to as "NiteFlirt." If NiteFlirt accepts your Member Sign-up Form, you will become a "Member" having access to the Site and Speaker Services only under the policies, terms and conditions below. For convenience, we will refer to the NiteFlirt.com website, Mail (any email you send from your Member account to another Member), phone services (including services available through 1-800-TO-FLIRT and other numbers that NiteFlirt maintains for access by Members) and any content therein provided by NiteFlirt as the "Site." We will refer to any information, entertainment services and other products or services you may receive from other Members (in their role as Speakers) or their listings on the Site as the "Speaker Services" or "Flirt Services." Members who enter into the Member Agreement and those who solicit or receive Speaker Services from other Members will be referred to as "Members." Members who create listings and/or provide Speaker Services will also be referred to as "Speakers" or "Flirts."
The policies, terms and conditions below limit NiteFlirt's liability and obligations to you and allow NiteFlirt to change, suspend or terminate your access to and use of the Site and Speaker Services. We urge you to carefully read the following terms and conditions, and all policies referenced below or elsewhere on the Site. The following policies and rules are incorporated into the Member Agreement by reference and provide additional terms and conditions: Age Verification Agreement, Flirt Policy, Payment Policy, Privacy Policy, Feedback Policy, Photo Policy, Anti-Spam Policy, Affiliate Agreement, and Forum Policy. To the extent that there are any conflicts between the terms or conditions in such related policies and this Member Agreement, the terms and conditions of the Member Agreement shall govern.
YOU UNDERSTAND THAT BY CLICKING THE BUTTON TO CONTINUE ON THE REGISTRATION PAGE, BY USING THE SITE AND ANY SPEAKER SERVICES INCLUDING ANY CONTENT PROVIDED THEREIN, BY INITIATING ANY FORM OF COMMUNICATION WITH A MEMBER OR BY POSTING ANY LISTINGS ON THIS SITE, YOU ARE AGREEING TO BE BOUND BY THIS MEMBER AGREEMENT THAT BINDS YOU IN THE SAME WAY THAT A PAPER CONTRACT BINDS YOU. ALL USE OF THE SITE AND SPEAKER SERVICES IS SUBJECT TO THE TERMS OF THIS MEMBER AGREEMENT AND THE POLICIES, TERMS AND INSTRUCTIONS REFERENCED IN THE SITE, WHICH ARE INCORPORATED AND CONSIDERED AS PART OF THESE TERMS. YOU MUST ACCEPT WITHOUT MODIFICATION ALL OF THE TERMS, CONDITIONS, POLICIES AND NOTICES REFERENCED IN THIS MEMBER AGREEMENT IN ORDER TO ACCESS AND USE THE SITE AND SPEAKER SERVICES. IF YOU DO NOT ACCEPT THIS MEMBER AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR SPEAKER SERVICES.
1. Eligibility to use the Site and Speaker Services is limited.
The Site and Speaker Services are available only to persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law. Without limiting the foregoing, the Site and Speaker Services are not available to temporarily or indefinitely suspended Members.
You shall not use the Site or become a Member if you are located or reside in a country (a) in which use or participation is prohibited by law, decree, regulation, treaty or administrative act or (b) is prohibited from entering into trade relations with the United States or its citizens. Such countries include, without limitation, Afghanistan, Burma, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, Syria and Yugoslavia.
2. You use or provide Speaker Services, and consult with Speakers, at your own risk.
(a) NiteFlirt does not evaluate, provide, produce or control the Speaker Services, or information or exchanges between Members, in any manner. NiteFlirt does not itself provide any information, entertainment services or other products or services, nor verify, guarantee or make any representations regarding the identity or qualifications of any Member. Further, NiteFlirt does not make editorial or managerial decisions concerning content, sexually explicit or otherwise. Nor will NiteFlirt be held responsible for any Speaker's failure to comply with laws or regulations concerning the content of listings. Instead, NiteFlirt acts as a technology service that allows Members to share information, entertainment services or other products or services among themselves. Although NiteFlirt helps its Members connect with each other, it does not monitor the advice exchanged, and, as a result, NiteFlirt does not control, nor is responsible for, the truth, accuracy, completeness, safety, timeliness, quality, appropriateness, legality or applicability of anything said or written by Members, including without limitation any information contained in Speaker listings or made available through this Site. The Site is not intended for use as a payment service to exchange goods. NiteFlirt is not responsible for use or exchange of any information, files or goods between Members. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Site and Speaker Services, in evaluating the qualifications of, and statements made by, Members in listings or through the Member feedback system, and in disclosing personal information to other Members. NiteFlirt recommends that you do not disclose personal contact information to Members. If you do, you do so at your own risk. NiteFlirt assumes no responsibility for monitoring any Member feedback or otherwise policing its Members in any way. If you ever believe that a Member has violated the law or is defrauding, threatening or endangering anyone, NiteFlirt urges you immediately to contact the police directly for help. In addition NiteFlirt does not recommend or encourage Members to use the Site or Speaker Services to solicit other Members to meet with them in person.
(b) NiteFlirt does not refer, endorse, recommend, verify, evaluate or guarantee any information, entertainment services or other products or services provided by Speakers or Members, or any specific Member, Speaker or Speaker Services, and nothing shall be considered as a referral, endorsement, recommendation or guarantee of any Speaker or group of Speakers by NiteFlirt. You must use your judgment to determine whether to initiate, receive and/or discontinue use of the Speaker Services. Members who initiate, receive and/or discontinue use of the Speaker Services do so entirely at their own risk, and NiteFlirt bears no responsibility in this regard. In accordance with its Privacy Policy. NiteFlirt does not monitor telephone conversations between Members. However, NiteFlirt reserves the right to contact Members and review Mail without revealing its identity, in order to evaluate compliance with the rules and policies set forth in this Member Agreement and to take other action as set forth in the Privacy Policy. Therefore, we urge you to review and understand the Privacy Policy. As part of this Member Agreement you are agreeing to the terms and conditions set forth in the Privacy Policy and are obliged to abide by the agreements contained in that document.
(c) If you have a dispute with another Member, or suffer any harm arising out of or connected with any Speaker Services, you hereby waive all claims against and release NiteFlirt (and its subsidiaries, employees, officers, directors, shareholders, suppliers, joint venturers and agents) from any and all liability for claims, demands, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any Speaker Services or with regard to such disputes. If you are a California resident, you waive your rights under California Civil Code §1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations waive their rights under analogous laws, statutes or regulations.
3. NiteFlirt may modify this Member Agreement, or suspend or terminate your use of the Site, at any time without notice to you.
(a) NiteFlirt reserves the right in its sole discretion to modify or discontinue the Site, or modify the terms and conditions of your use of the Site, without notice. All modified terms and conditions will be effective thirty (30) days after they are initially posted on the Site. Changes to the Payment Policy are effective after NiteFlirt provides Speakers with at least fourteen (14) days notice of the changes by emailing Speakers. If any modification is not acceptable to you, your only recourse is to cease using the Site and Speaker Services. By continuing to use the Site or any Speaker Services following any posting of a new Member Agreement or policies on the Site, you accept and agree to be bound by the new Member Agreement or policies.
(b) Without limiting other remedies, NiteFlirt may at any time suspend or terminate your membership and refuse to provide access to the Site without reason or notice to you. In addition, NiteFlirt may notify your bank and/or authorities or take any actions it deems appropriate without notice to you, (i) if NiteFlirt suspects that you have failed to comply with any provision of this Member Agreement or any policies or rules established by NiteFlirt; (ii) if NiteFlirt is unable to verify or authenticate any billing or payment information you provide to NiteFlirt; or (iii) if NiteFlirt suspects that your actions may be illegal or cause liability, harm or disruption for you, other Members, NiteFlirt or the Site. You have the right to cancel your membership in NiteFlirt by filling out the Customer Support Form and selecting "Cancel Account" in the subject line. Any suspension, termination or cancellation will not affect your obligation to pay any amounts due to NiteFlirt.
4. The Site is only a venue for Member listings.
NiteFlirt acts only as an interface to facilitate communications initiated between Members. As a Member, you are not an employee, agent or contractor of NiteFlirt, and you shall not represent that you are any of the foregoing. You are solely responsible for all equipment necessary to access and use the Site and Speaker Services, and for reporting and payment of all taxes associated with fees transferred to you by NiteFlirt.
5. You are solely responsible for all use made of the Site and Speaker Services under your password and Member account information and agree to pay for all Speaker Services purchased using your password and Member account information.
(a) The rates for Speaker Services are as set forth in the applicable Speaker listing. "Transaction" means any live or recorded call through the Site initiated using your password and Member account information and any Mail response sent to your Mail account in response to a request for information, entertainment services or other products or services from a Speaker who lists a fee for email responses (each a "Paid Mail"). You hereby authorize NiteFlirt to collect fees for each Transaction by debiting your Member account immediately upon conclusion of each Transaction, regardless of quality or completeness. Fees for live and recorded calls are calculated based on the per-minute rate listed and the duration of the call, or from time to time may be offered by NiteFlirt for a single price listed for a bulk package of time. Time for calls sold in bulk have an expiration date; and you will not be entitled to receive a refund for any time remaining after the expiration date for the bulk minutes. Fees for recorded calls are determined based on the listed fee. Fees for Paid Mail are collected immediately upon acceptance of the Paid Mail, regardless of quality or completeness, by the receiving Member and are determined as set forth in the Speaker listings. When purchasing a package of bulk minutes, you authorize NiteFlirt to authorize your credit card for the entire price of the bulk package prior to connecting your next call and to subsequently charge your card for the entire cost of the bulk package once your call is connected. You authorize NiteFlirt, directly or through third parties, to make any inquiries we consider necessary to validate your Member account and/or listing information. This may include ordering a credit report and performing other credit checks or otherwise verifying the information you provide.
(b) You agree to maintain the confidentiality of your password and Member account information and to supervise all activities that occur under your Member name, password or Member account, including, but not limited to, any and all usage of the Site by other persons under your Member name and password. You agree that you will not permit, enable, introduce or facilitate (i) non-Members having access to or use of the Site or Speaker Services in any manner without such individuals first becoming Members and (ii) other Members to use a specific Speaker Service at the same time that you are doing so.
(c) You agree that NiteFlirt is not responsible for any loss that you may incur as a result of any unauthorized person using your Member account or password. You agree that NiteFlirt may use information provided by you as described in the Privacy Policy.
(d) Based on Member account use and other factors identified by NiteFlirt in its sole discretion, NiteFlirt may require verification of your credit, identity and/or other background information in order for you to continue using the Site. In such event, you agree to provide NiteFlirt with additional information that may be requested, you consent to NiteFlirt's disclosure of your personal information to third-party service providers in order to verify your credit, identity and/or other background information, and you authorize NiteFlirt to obtain a consumer credit report from consumer credit reporting agencies and to verify your identification.
6. In using or accessing the Site or Speaker Services, you agree to comply with the following:
(a ) You (as a Speaker providing Speaker Services) are solely responsible for the content provided and the content on listings created under your Member account.
(b) You (as a Member receiving Speaker Services) will not record or otherwise store any live or pre-recorded voice Speaker Services that you receive through the Site. You (as an Speaker providing Speaker Services) will not record or otherwise store any calls you conduct with a Member. Notwithstanding the foregoing, Speakers may provide pre-recorded voice Speaker Services (each, a "Recorded Listing" as described further on the Help page of the Site) to Members in accordance with the Flirt Policy.
(c) You will not use the Site for any purpose that is unlawful, fraudulent or contrary to this Member Agreement and the policies of NiteFlirt, and you will cooperate fully with NiteFlirt to investigate any suspected unlawful, fraudulent or improper activity, including but not limited to granting authorized NiteFlirt representatives access to any password-protected portions of your Member account.
(d) You will not solicit or provide advice, directly or through writings, as to the value of securities or as to the advisability of investing in, purchasing or selling securities or any report or analysis concerning securities.
(e) You will conduct all for-fee communications that you have with other Members only through the Site, and you will not circumvent or attempt to circumvent the Site using third-party payment services.
(f) You will not use the Site in any manner that harasses another Member or could interfere with any other party's use or enjoyment of the Site. You will respect the privacy of others and not use the Site for unwelcome, rude or abusive communications.
(g) You will not attempt to gain unauthorized access to any Member account information, computer systems or networks associated with the Site.
(h) You will not attempt to obtain any information or materials relating to the Site through any means not intentionally made available through the Site.
(i) You will not "frame," "mirror" or otherwise copy any portion of the Site without NiteFlirt's express written authorization.
(j) You will continue to provide true, accurate and complete payment registration information and will maintain as current and promptly update your personal contact information that you provide to NiteFlirt, as applicable. You will not use false identities or impersonate any other person or use a name that you are not authorized to use.
(k) You will not use the Site to solicit Members, to promote any product or services other than the information services described in your Member listing which are provided through the Site, to provide any product or services related to, claiming success with or offering information regarding lottery numbers or for purposes of multi-level marketing proposals (for example, offering to help participants "get rich quickly," "lose weight now" or "make money surfing the Web").
(l) You will not transmit "junk mail," "spam," "chain letters" or unsolicited mass distribution of email or bulletin board postings, or transmit solicitation for employees, consultants, contractors or for participation on other websites. See our Anti-Spam Policy for further information.
(m) You will not use the Site to promote bonus items, giveaways, random drawings, prizes, contests or games of chance.
(n) You will not take any actions which may undermine the Member referral system, or the Member feedback system used to solicit feedback from Members, including without limitation leaving positive feedback for yourself or other Members, using secondary Member names or third parties or leaving negative feedback if a Member fails to perform some action that is outside the scope of the services described in his or her Member listing.
(o) You will not create obscene, offensive, tasteless, defamatory or hateful Member names or content for listings. In addition, obscenity and child pornography are prohibited on NiteFlirt because they violate the laws of the United States and many other countries.
(p ) You will adhere to all applicable laws and regulations governing your actions in connection with the Site and (as a Speaker providing Speaker Services) are responsible for meeting the requirements of applicable record keeping laws, including, but not limited to, meeting the requirements of 18 U.S.C. 2257 and related regulations.
(q) You will not encourage or instruct any other individual to do any of the foregoing or to violate any term of the Member Agreement and NiteFlirt policies.
7. As between the parties, NiteFlirt shall retain all ownership in the Site including all URLs and any content created or derived from the Site.
NiteFlirt shall own all right, title and interest in Speaker Services and the Site, including but not limited to, all methods, processes, content, formats, designs, URLs, buttons, phone numbers, toll free numbers and number extensions together with all inventions, patents, copyrights, trademarks and other intellectual property rights and derivative works and improvements pertaining thereto. No copyrights, patent rights, trademarks or licenses are conferred herein by NiteFlirt, either expressly or by implication.
You understand and agree that (i) You will have no right, title and interest to any of the toll free numbers, phone numbers or extension numbers assigned to You (ii) that NiteFlirt may change Your toll free number, phone numbers and/or extension number at any time in its sole and absolute discretion (iii) You will have no right, title and interest to any listing name in connection with NiteFlirt Services and (iv) that phone numbers, toll free numbers, extensions and listing names may be recycled by NiteFlirt to other users of NiteFlirt Services if You are not actively using them or Your agreement has been terminated. Further, You hereby grant to NiteFlirt, its distribution partners, affiliates and similar third party website/media providers of NiteFlirt's choice the right to use, copy, distribute, display or reference in any media form Your listing information, including without limitation, Your listing name, tags, descriptions, photos, NiteFlirt buttons, phone numbers and extensions.
8. If you act as a Speaker, you will comply with and be subject to NiteFlirt's Speaker Rules Policy and Payment Policy. NiteFlirt's Flirt Policy and Payment Policy are available on the Flirt Policy and Payment Policy pages, and are incorporated into this Member Agreement by reference.
9. Account Maintenance Fee.
NiteFlirt may charge an Account Maintenance Fee of two dollars ($2.00) per month for all Member accounts. However if the Member uses the Member account to purchase information, entertainment services or other products or services, then for a period of twelve (12) months from the date of such use, NiteFlirt may waive the Account Maintenance Fee for all active Member accounts.
10. NiteFlirt disclaims any warranties or representations regarding the Site and Speaker Services.
THE SITE AND ANY SPEAKER SERVICES OR GOODS OBTAINED THROUGH THE SITE ARE PROVIDED "AS IS" WITH NO WARRANTY OF ANY KIND. NITEFLIRT AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, SPEAKER SERVICES AND ALL COMMUNICATIONS BETWEEN MEMBERS MADE THROUGH THE SITE, INCLUDING ANY IMPLIED WARRANTY OF QUALITY, AVAILABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. In addition, NiteFlirt makes no representation or warranty that the operation of the Site will be error free. Some states do not allow the exclusion of warranty, so the above exclusions may not apply to you.
11. NiteFlirt's liability for your access to and use of the Site and Speaker Services is limited and you are responsible for your use of the Site.
UNDER NO CIRCUMSTANCES WILL NITEFLIRT OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH USE OF THE SITE OR SPEAKER SERVICES, WHETHER OR NOT NITEFLIRT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NITEFLIRT AND ITS SUPPLIERS' AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (a) THE TOTAL FEES ACTUALLY EARNED BY NITEFLIRT FROM YOU (AFTER PAYMENTS TO SPEAKERS AND OTHER THIRD PARTIES) IN THE PREVIOUS TWELVE (12) MONTHS, AND (b) ONE HUNDRED DOLLARS ($100). NITEFLIRT WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation and exclusions may not apply to you.
YOU FURTHER AGREE TO HOLD HARMLESS, DEFEND AND INDEMNIFY NITEFLIRT, AND ITS EMPLOYEES, SUBSIDIARIES, AGENTS AND REPRESENTATIVES, FROM AND AGAINST ANY LIABILITY ARISING FROM OR IN ANY WAY RELATED TO YOUR USE OF THE SITE OR PROVISION OF SPEAKER SERVICES, INCLUDING ANY LIABILITY OR EXPENSE ARISING FROM ALL CLAIMS, LOSSES, DAMAGES (ACTUAL AND CONSEQUENTIAL), SUITS, JUDGMENTS, LITIGATION COSTS AND ATTORNEYS' FEES, OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, FORESEEABLE AND UNFORSEEABLE, DISCLOSED AND UNDISCLOSED. In each case, NiteFlirt will provide you with written notice of such claim, suit or action. NiteFlirt shall have the right to withhold payments to you to offset liabilities and expenses covered hereunder.
12. NiteFlirt prohibits the unauthorized use of copyrighted materials and trademarks.
YOU SHALL NOT USE THE SITE OR ITS SPEAKER SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS, TRADEMARKS, OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
NiteFlirt has adopted and implemented a policy, stated below, that provides for the termination in appropriate circumstances of Members who infringe or are believed to be infringing the rights of copyright holders or of holders of federally registered trademarks (and unregistered trademarks in certain circumstances).
NiteFlirt Copyright and Trademark Related Policy:
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide NiteFlirt's Copyright Agent listed below with the following information required under 17 U.S.C. § 512:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) Identification of the copyright work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at the Site;
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit NiteFlirt to locate the material;
(d) Information reasonably sufficient to permit NiteFlirt to contact the complaining party, including a name, address, telephone number and, if available, an email address at which the complaining party may be contacted;
(e) A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
(f) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
NiteFlirt's Copyright Agent for notice of claims of copyright infringement on or regarding this Site can be reached as follows:
Copyright Agent
c/o NiteFlirt
182 Howard Street #418
San Francisco, CA 94105
Phone: (877) 527-2655
Email: copyright@niteflirt.com
Upon receipt of notice as described above, NiteFlirt will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged use from the Site, and/or termination of the Member's account.
If you believe that your federally registered trademark is being used by an Speaker or Member in a way that constitutes trademark infringement, please provide NiteFlirt's Trademark Agent with the following information:
(a) A physical or electronic signature of a person authorized to act on behalf of the registered trademark owner;
(b) Information reasonably sufficient to permit NiteFlirt to contact the registered trademark owner or its authorized agent, including a name, address, telephone number and, if available, an email address;
(c) Identification of the trademark(s) claimed to have been infringed, including a copy of each relevant federal trademark registration certificate(s);
(d) Information reasonably sufficient to permit NiteFlirt to identify the use being challenged by the registered trademark owner;
(e) A statement that the registered trademark owner has not authorized the challenged use, and that the registered trademark owner has a good-faith belief that the challenged use is not authorized by law; and
(f) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is the registered trademark owner or is authorized to act on behalf of the registered trademark owner.
Upon receipt of notice as described above, NiteFlirt will confirm the existence of the federal registration of the trademark in question and will take whatever action, in its sole discretion, it deems appropriate, including following confirmation of the existence of the federal registration, removal of the challenged use from the Site, with notice to the Speaker or Member in question, if, in NiteFlirt's sole discretion, NiteFlirt concludes that the mark or name is identical to the registered mark and is used in connection with goods and/or services covered by the trademark owner's federal registration, unless, prior to such removal, the Speaker or Member in question demonstrates that it has its own trademark registration or approved trademark application covering the use in question.
Notwithstanding the foregoing, NiteFlirt will comply as appropriate with the terms of any court order relating to the behavior of the challenged party identified in such court order.
NiteFlirt's Trademark Agent for notice of claims of trademark infringement on or regarding this Site can be reached as follows:
Trademark Agent
c/o NiteFlirt
182 Howard Street #418
San Francisco, CA 94105
Phone: (877) 527-2655
Email: copyright@niteflirt.com
13. Links to Other Websites.
The Site may provide links to websites other than NiteFlirt. Such links are provided for reference only, and NiteFlirt neither controls such websites nor endorses any of the material on any such websites or any association with their operators.
14. Notice.
Any notice or other communication to be given hereunder will be in writing and given (a) by NiteFlirt via facsimile, receipt confirmed, United States mail or email (in each case to the number or address that you provide), and (b) by you via email to privacy@niteflirt.com. The date of receipt shall be deemed the date on which such notice is transmitted in the case of facsimile or email, and five (5) days after receipt by the U.S. Postal Service in the case of United States mail.
15. No Assignment.
You shall not assign this Member Agreement or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of NiteFlirt. Any such purported assignment or delegation by you without the appropriate prior written consent of NiteFlirt will be null and void and of no force or effect, unless otherwise expressly consented to by NiteFlirt at its sole and absolute discretion. NiteFlirt may assign this Agreement or any rights hereunder without your consent.
16. Relationship of the Parties.
Notwithstanding any provision hereof, for all purposes of this Member Agreement each party shall be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and shall not bind nor attempt to bind the other to any contract.
17. Arbitration.
Any controversy or claim arising out of or relating to this Member Agreement, the breach thereof or its subject matter shall be settled by binding arbitration in accordance with the consumer commercial arbitration rules of the American Arbitration Association. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in San Francisco, California, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Notwithstanding anything to the contrary, NiteFlirt, the Member or any other party to the arbitration may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.
18. You consent to the use of (a) electronic means to complete this Member Agreement, to use the Site and Speaker Services and to provide you with any notices given pursuant to this Member Agreement, and (b) electronic records to store information related to this Member Agreement or your use of the Site.
You can request a copy in paper form of this Member Agreement and any other records relating to this Member Agreement or your use of the Site by sending a written request to NiteFlirt, 182 Howard Street, #418, San Francisco, CA 94105. You understand and agree that this Member Agreement and any notices given pursuant to this Member Agreement are enforceable in electronic format.
19. Miscellaneous.
If any provision of this Member Agreement is held to be invalid or unenforceable, such provision shall be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remaining provisions shall be enforced. NiteFlirt's failure to act with respect to a breach by you or others does not waive NiteFlirt's right to act with respect to subsequent or similar breaches. The failure of NiteFlirt to exercise or enforce any right or provision of these terms and conditions shall not constitute a waiver of such right or provision. This Member Agreement shall be governed by and interpreted in accordance with the laws of the State of California. The parties acknowledge that this Member Agreement evidences a transaction involving interstate commerce. The Federal Arbitration Act shall govern the interpretation, enforcement and proceedings pursuant to the arbitration clause in this Member Agreement. You agree that this Member Agreement and the Member rules and restrictions and policies contained herein, and NiteFlirt's enforcement thereof, are not intended to confer and do not confer any rights or remedies upon any person other than you and NiteFlirt. This Member Agreement together with the rules and policies of NiteFlirt constitutes the entire agreement between NiteFlirt and you with respect to the subject matter hereof.
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