This Affiliate Agreement ("Agreement") contains the complete terms and conditions that apply to you participating in the NiteFlirt Affiliate Program. The purpose of this Agreement is to allow you to link between a web site owned and controlled by you (the "Affiliate's Web Site") and the NiteFlirt.com web site and NiteFlirt 800 numbers (collectively the "NiteFlirt Site"). This Agreement will become effective upon once you agree to the Agreement (the "Effective Date"). NiteFlirt reserves the right to accept or reject your application in NiteFlirt's sole discretion. Defined terms shall have the meaning set forth herein or in Exhibit A below.
|a.||NiteFlirt has the right to monitor the content on Affiliate's Web Site in a commercially reasonable manner as NiteFlirt believes necessary to monitor use of the Placements and for compliance with the terms of this Agreement. NiteFlirt has the right to notify you of any reasonable changes that you need to make to comply with the NiteFlirt guidelines for the use of the Placements, and to otherwise comply with the terms of this Agreement, and you agree to promptly make such changes.|
|b.||You shall cooperate with NiteFlirt in order to establish and maintain any Placements between the NiteFlirt Site and Affiliate's Web Site.|
|c.||You agree that NiteFlirt will be allowed to place an identifying tag in each Placement that will identify the origin of a user that arrives directly at the NiteFlirt Site by clicking on the Placement.|
You are solely responsible for the accuracy and appropriateness of all materials posted on Affiliate's Web Site, and for ensuring that your activities, including materials posted on Affiliate's Web Site and communications with NiteFlirt, other Members, New Customers, and potential customers are not defamatory, in violation of copyright laws or otherwise illegal. You further agree that your activities, including communications with NiteFlirt, other Members, New Customers and potential customers regarding or relating to NiteFlirt in any way, are in full compliance with all applicable laws in your jurisdiction. You further agree to abide by NiteFlirt's Anti-Spam Policy.You agree to indemnify and hold NiteFlirt harmless for any violations of the foregoing. NiteFlirt disclaims all liability for these matters.
NITEFLIRT PROVIDES THE NITEFLIRT SITE AND ALL CONTENT, INFORMATION AND SERVICES AVAILABLE THEREIN, "AS IS" AND MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING NITEFLIRT OR ANY SERVICES OR INFORMATION PROVIDED BY ANY MEMBER OF NITEFLIRT. ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, NITEFLIRT MAKES NO REPRESENTATION THAT THE OPERATION OF THE NITEFLIRT SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND NITEFLIRT WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS, DOWNTIME OR ERRORS.
You represent and warrant that 1) you have full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party; 2) you have sufficient right, title, and interest in and to the rights granted to NiteFlirt in this Agreement; 3) the material posted on Affiliate's Web Site does not defame any third party or violate or infringe upon the rights of any third party and all applicable copyright and other laws that pertain to it; 4) you shall not make any representations or warranties regarding the services provided by NiteFlirt; and 5) you shall not make or publicize any statements that are disparaging of NiteFlirt or that otherwise portray NiteFlirt in a negative light.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, NiteFlirt WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF GOODWILL OR ACTUAL OR ANTICIPATED REVENUE, PROFITS OR LOST BUSINESS), EVEN IF NiteFlirt HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL NiteFlirt'S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY) OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL REFERRAL FEES PAYABLE TO YOU UNDER THIS AGREEMENT.
You agree to indemnify and hold harmless NiteFlirt and its employees, directors, representatives, agents, and affiliates, against any and all claims, suits, actions, or other proceedings brought against NiteFlirt based on or arising from any claim resulting from your breach of the warranties and covenants in Section 9. You agree to pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by the other party in connection with or arising from any such claim, suit, action, or proceeding.
In connection with the activities contemplated by this Agreement, you may acquire confidential technical or business information of NiteFlirt which is not generally known to the public, including without limitation (i) proposals, ideas or research related to possible new products or services; (ii) financial statements and other financial information; (iii) any reporting information required by the Agreement; and (iv) the terms of this Agreement and the relationship between the parties (collectively, "Confidential Information"). You agree not to disclose the Confidential Information or use the Confidential Information for your own benefit or for the benefit of any third party. Your obligations in this Section shall not apply to any information that you can document: (i) was in the public domain at or subsequent to the time it was communicated to you through no fault of yours; (ii) was rightfully in your possession free of any obligation of confidence owed to NiteFlirt at or subsequent to the time it was communicated to you by NiteFlirt; (iii) was in response to a valid order by a court or other governmental body or was otherwise required by law. Upon the termination or expiration of this Agreement, you shall return upon NiteFlirt's request or otherwise destroy all Confidential Information of NiteFlirt in your possession.
NiteFlirt reserves the right, at its full discretion, to disqualify any individual it suspects of undermining or manipulating the registration and/or qualifying process, the operation of the Affiliate Program or to be acting in violation of this agreement. If we determine, in our sole discretion that the this Affiliate Program is compromised by virus, bug, robot entries, or other corruption of the administration, security or proper management of the program, then at our sole discretion, we can cancel this program. In the event of your non-compliance with any requirement stated herein, NiteFlirt may withhold any payments due to you until resolution of all disputes.
YOU HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND, HAVE HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL AND ACCEPT THE OBLIGATIONS, WHICH IT IMPOSES UPON YOU WITHOUT RESERVATION. YOU HAVE ALSO TAKEN INTO ACCOUNT THE LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER PROVISIONS OF THIS AGREEMENT PRIOR TO ACCEPTING THIS AGREEMENT. NO PROMISES OR REPRESENTATIONS HAVE BEEN MADE TO YOU TO INDUCE YOU TO SIGN THIS AGREEMENT. YOU AGREE TO THE TERMS OF THIS AGREEMENT VOLUNTARILY AND FREELY.