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|THIS AGREEMENT was made between GreatPersonals.com (“SITE” “we/us/our”), and the Member Webmaster submitting this Application, (“Webmaster” or “you/your”), on the date the online Application Form is submitted to and approved by the SITE.
IMPORTANT! By accessing, using, viewing, reading, printing, installing, or downloading any material from the SITE, or becoming an affiliate member to the SITE, you agree to be bound by these Terms and Conditions. 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 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. The terms and conditions of this Agreement are subject to change by the SITE at any time in its discretion. You will be provided reasonable notice of any such changes. Notice of any change by e-mail, to your address on our records, or by posting the changes on the SITE, is considered sufficient notice for notifying you of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available commission fees, commission schedules, payment procedures, and Webmaster Program rules. All such modifications shall take effect forty-eight (48) hours after the SITE serves notice as provided above, unless the SITE indicates otherwise. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Any continued performance under this Agreement, following our posting of a change notice or new agreement on our SITE, shall constitute confirmation of Webmaster’s acknowledgement and assent to any such modifications. Please consult this Agreement as posted on SITE regularly and read them carefully before using the SITE. You affirm that you have read this Agreement and understand, agree and consent to its Terms and Conditions.
You are solely responsible for obtaining access to the SITE 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 SITE (i.e., computers, modems, and software, including the most recent versions of Internet browsers, applications, and plug-ins).
W I T N E S S E T H:
WHEREAS, SITE has developed an Affiliate Webmaster Membership Program (“Program”) for its Web site, www.greatpersonals.com, (hereinafter the “Web site” or “SITE”), and intends to market the Program through various online and traditional media; WHEREAS, Webmaster desires to use the Program to develop its Internet presence, subject to the terms and conditions stated herein; and, WHEREAS, SITE and Webmaster 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, SITE and Webmaster hereby agree as follows:
1. GRANT OF LICENSE AND WEBMASTER’S CONTENT
SITE agrees to provide access to, and membership in, the Program to Webmaster and to provide Webmaster with the ability to market, advertise and promote certain content, images, recordings, video, audio, links, computer script, advertising banners, and other promotional materials (hereinafter, “Materials”) that are associated with the Program from time to time, and hereby grants a non-exclusive, restricted, revocable license to use such Materials solely for the purposes set forth in this Agreement. The SITE reserves the unequivocal right to select, alter, delete, add to, or remove any and all Materials for use by Webmaster. SITE’s Materials may not be used in violation of any term contained in this Agreement. Webmaster’s license to use the Materials shall automatically terminate, and all such rights shall automatically revert to SITE upon cancellation of the Webmaster’s membership or withdrawal from the Program by the Webmaster. Webmaster may not copy, reproduce, alter, modify, change, broadcast, distribute, transmit, disseminate, sell or offer for sale in any manner, the Materials at any time anywhere in the world except as expressly authorized by the SITE in writing. Upon acceptance into the Program, SITE will begin providing users with the information and Materials necessary to participate in the Program. Logos, graphics or text may be created by the Webmaster, with SITE’s permission. Any restrictions provided by the SITE with the transmission of the Materials shall be deemed incorporated into this agreement, and made a part hereof. Webmaster agrees to abide by any such restrictions on the use, dissemination or display of the Materials set forth by the SITE. The SITE reserves the right to require any text, online agreement, documents, notices, disclaimers, or age verification devices that may be necessary or desirable to protect the SITE’s or the Webmaster’s legal or proprietary interests. The Webmaster shall be solely responsible for all content available on or through its website used to promote any content in the SITE’s network, and operation of such promotional website shall at all times be subject to the terms of this Agreement. Webmaster further warrants that its website does not and will not infringe upon, or contain any content that infringes upon, the rights of third parties, nor does it violate any intellectual property rights of, or otherwise violate any applicable law, rule or regulation. SITE shall have no obligations with respect to the content available on or through any participating promotional website, including but not limited to, any duty to review or monitor any content found on such website. For avoidance of doubt, Webmaster is solely responsible for the content on Webmaster’s website. SITE owns the rights to any and all content and Materials located on Webmaster’s site, whether or not provided by SITE. As more fully described infra, SITE shall remain the owner of all intellectual property rights pertaining to the Materials, which may be licensed from third party content producers. Any and all derivative works generated by Webmaster shall inure to the benefit of the SITE, which shall be considered the owner or license holder of such derivative works, to the greatest extent permitted by law.
2. ENROLLMENT PROCEDURE
To begin the enrollment procedure, you must submit a completed SITE Signup Application Form through our Signup page located at: http://www.greatpersonals.com/ws/signup.php. 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 this Agreement; 3) if your SITE promotes or facilitates illegal activity, or violates the rights of others such as copyright, trademark, rights of publicity, patent rights, privacy rights, 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 SITE deems your application or SITE to be unsuitable for any reason whatsoever. The SITE will not accept accounts including, but not limited to, webmasters from: Albania, Armenia, Azerbaijan, Belarus, Brazil, Bulgaria, China, Cost Rica, Croatia, Czech Republic, Estonia, Georgia, Hungary, India, Indonesia, Israel, Japan, Jordan, Kaliningrad, Kazakhstan, Korea, Kyrgyzstan, Latvia, Lithuania, Malaysia, Moldova, Pakistan, Poland, Philippines, Romania, Russia, Singapore, Slovakia, Slovenia, Syria, Taiwan, Tajikistan, Thailand, Turkey, Turkmenistan, Ukraine, United Arab Emirates, Uzbekistan and Yugoslavia.
This Agreement and the provisions hereof, shall be in full force and effect commencing on the date accepted by SITE and continuing until terminated by either of the parties in accordance with the Termination provisions set forth infra.
4. COMPENSATION AND BENEFITS
The SITE offers different programs, which are described at http://www.greatpersonals.com/ws/signup.php, for its Webmaster clients. The SITE pays thirty-five dollars ($35.00) for both trial and full signups. We pay forty dollars ($40.00) if Webmaster sends more than two-hundred and ten (210) qualified signups in a pay period (fifteen signups per day or better average). For the Webmaster Referral Program, an active Webmaster is defined as a Webmaster that has sent a small number of customer signups (the number is randomly between 4-8 to prevent fraud) to our Sites described at: http://www.greatpersonals.com/sites.htm. Fifty dollar ($50.00) bonus days are for a maximum of 20 signups for that given day. Family members are not eligible as referrals and any attempt to "cheat" the program will result in immediate account termination. Webmaster also acknowledges and agrees that Webmaster shall not be entitled to a commission or referral fee from the SITE for any subscription that the SITE determines is the result of possible fraudulent activity. Webmaster further acknowledges and agrees that the SITE shall have the right, in its sole and exclusive discretion, at any time to expand or modify what it determines to constitute possible fraudulent activity. Without limiting the foregoing, possible fraudulent activity shall include without limitation, the following circumstances or activities: (1) Where there has been an attempt to put through a credit card with a bin number that is listed in a negative bin number database; and (2) Where there hag Act, and that Webmaster must conspicuously identify a records custodian and records address for each image appearing on the Webmaster’s website. Webmaster 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 eighteen (18) years of age when the content was created. SITE will provide each Webmaster with relevant records custodian information for sexually explicit content provided by the SITE. The SITE makes no representations or warranties other than those specifically contained herein, and specifically disclaims any implied warranties, including merchantability or fitness for a particular purpose.
9. ACCEPTABLE USE POLICY FOR WEBMASTERS
Webmaster agrees to be bound by the following general policies in connection with all content with which the SITE’s 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, scat, coffins, defecation, urination, genital mutilation, sacrilegious, teen modeling, actual or simulated rape, sexual violence, menstruation, obscenity, bestiality, threats of physical harm to persons or property, programs containing viruses, pirated software, wire fraud, drug trafficking, and/or violations of international export control laws. Any hits directed from websites containing illegal content or obscene material will be immediately terminated.
* SITE reserves the right to review and/or reject any content affiliation created by Webmaster.
* No traffic is allowed from websites that contain Content that constitutes an infringement, misappropriation or violation of any person’s intellectual property rights such as copyrights, trademark rights, right of publicity, patent rights, personal property rights, privacy rights or other rights.
* SITE may not be promoted on any website that encourages password trading or hacking.
* Webmasmaterials. Accordingly, all images, web pages, or tours depicting sexual activity must be protected by some form of legal age verification. Therefore, the SITE adopts the following policies with regard to online age verification: (1) Webmaster must prevent users from accessing images depicting sexual activity (i.e. hardcore images) unless the user has passed through the Birth Date Verifier™ online age verification form; or, through some other type of SITE-approved online age verification device that complies with the requirements of the Child Online Protection Act, (“COPA”); or (2) Alternatively, users must be restricted to accessing pages or content, or Material containing only soft core (i.e. no sexual activity or explicit display of the genitals) materials, which content will be separately identified and provided by the SITE. Violation of this age verification requirement will be considered a material breach, and grounds for automatic termination of this Agreement.
Webmaster agrees not to utilize any false, misleading or infringing metatags tied to the Webmaster’s SITE. In addition, Webmaster agrees not to utilize any metatags that would imply or suggest that underage or illegal content may be found on the submitted SITE.
13. DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
A. NOTICE OF CLAIMED INFRINGEMENT. The SITE respects the intellectual property of others, and we ask our users to do the same. We voluntarily observe and comply with the United States’ Digital Millennium Copyright Act. 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 SITE’s Designated Copyright Agent the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
(b) description of the copyrighted work or other intellectual pr’s behalf.
You may send your Notice of Claimed Infringement to:
Lawrence G. Walters, Esquire
781 Douglas Avenue
Altamonte Springs, FL 32714
Phone: (407) 389-4529
Fax: (407) 774-6151
Please do not sent other inquires or information to our Designated Agent.
B. NOTICE AND TAKEDOWN PROCEDURES. The SITE implements, and the Webmaster consents to, the following “notice and takedown” procedure upon receipt of any notification of claimed copyright infringement. The SITE reserves the right at any time to disable access to, or remove any material or activity accessible on or from the 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 Digital Millennium Copyright Act (“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 SITE 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 notify the affected user. Then, the affected user may submit a counter-notification to the Designated Agent containing a statement made under penalty of perjury that the user has a good faith belief that the material was removed because of misidentification of the material. 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. 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.
15. INTELLECTUAL PROPERTY RIGHTS
A. Work Made for Hire. Webmaster hereby acknowledges and agrees that the content, Materials (and all copies thereof, including all photographs, video and audio tapes and negatives created hereunder), and any derivative works created by the Webmaster and used on Webmaster’s site shall be deemed “works made for hire” by operation of law in light of Webmaster being an independent contractor of SITE and the works qualifying as a “specially commissioned work.” To the extent that such content or Materials do not qualify as a “work made for hire” by operation of law or otherwise, Webmaster hereby agrees to assign to SITE, and hereby does irrevocably grant, assign and transfer to SITE for no additional consideration, all rights, title and interests in and to the content and Materials (including all photographs, video and audio tapes and negatives created hereunder), including without limitation all copyrights (and derivative works generated therefrom), patent rights, trade secrets, know-how and all other proprietary rights in and to same, to the fullest extent permitted by law. Webmaster agrees to sign and deliver to SITE all documents as SITE considers desirable to evidence the assignment of all rights to SITE in and to such content and Materials. SITE retains the copyrights and all other intellectual property rights to all Materials provided to Webmaster for use on Webmaster’s site, along with all content created by Webmaster appearing on the Webmaster’s website.
B. Ownership. As between the parties, Webmaster acknowledges and agrees that all rights, title and interests in and to the content, Materials and all intellectual property rights therein and thereto (including all United States and foreign patents, patent applications, registered and common law trademarks and service marks and any applications thereof, trade secrets, know-how, copyrights, and rights of publicity and anation of this Agreement. SITE reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification from Webmaster, but shall have no obligation to do so. Webmaster shall not settle any such claim or liability without the prior written consent of SITE, which shall not be unreasonably withheld. The Webmaster understands that SITE will take drastic measures to protect itself from any legal or civil litigation including, but not limited to, removing a Webmaster’s web page(s) or SITE(s) from its servers for any reason deemed appropriate by SITE. Webmaster also understands that SITE will charge, on an hourly basis, for any and all time spent responding to any third party complaints, disputes, copyright claims or actions involving Webmaster or Webmaster’s web sites.
20. RELATIONSHIP OF THE PARTIES
The relationship between SITE and Webmaster 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.
21. 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, net congestion, or any failure of a computer, server or software, including Y2K errors or omissions.
22. 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.
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 Florida, 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 Florida for resolution of all disputes. Exclusive venue for any litigation permitted under this Agreement shall be with the state and federal courts located in Seminole County, Florida.
24. AGREEMENT BINDING ON SUCCESSORS
The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their respective heirs, administrators, and successors.
Neither party may assign this Agreement or the rights and obligations hereunder to any third party without the prior express written approval of the other party, which shall not be unreasonably withheld.
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.
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.
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.
29. ATTORNEYS FEES
In the event any Party shall commence any claims, suits, or formal legal action to interpret and/or enforce the terms and conditions of this Agreement, or relating in any way to this Agreement, including without limitation asserted breaches of representations and warranties, the prevailing party in any such action or proceeding shall be entitled to recover, in addition to all other available relief, its reasonable attorney’s fees and costs incurred in connection therewith, including attorney’s fees incurred on appeal.
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.
31. BINDING AGREEMENT
The parties acknowledge the legally binding nature of this Agreement. By checking the box next to the “I agree to the conditions outlined in the terms of service agreement,” and clicking the “Submit Info” button on the signup form on the following web page: http://www.greatpersonals.com/ws/signup.php, and by supplying the SITE with all the required information to sign up to the SITE’s Program, you are acknowledging and affirmatively stating that you have read and understand the terms set forth herein and that you agree to be bound by the terms and conditions 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.