| (Revised 02/23/04) |
 |
| This Agreement, made and entered
by and between E-Unity, Inc. (“FitnessSingles”
or “we”), a Virginia Corporation, with its
principal place of business at 111 M Carpenter Drive,
Sterling,
VA 20164, and you, the affiliate (“you” or “Affiliate”),
contains the complete terms and conditions that apply
to your participation in the Fitness Singles.com Affiliate
Program (the “Affiliate Program” or “Program”) |
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| 1. Enrollment
in the Program |
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| You will submit a complete Affiliate
Program application from our site. After we carefully
review your application, we will notify you of your acceptance
or rejection to the Program. We may reject your application
(at our sole discretion) if we feel your site is unsuitable
or inconsistent with the mission of FitnessSingles.
If your site is accepted, Fitness Singles may terminate
this Agreement anytime thereafter if your site is determined
(at our sole discretion) to be unsuitable for the Program.
Only sites in English are eligible to participate in
the Fitness Singles Affiliate Program. |
|
| 2. Promotion
of Our Affiliate Program |
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| Upon your acceptance as an Affiliate
Site, we will make available to you (via FitnessSingles’
affiliate link) a variety of graphic and textual links
(the “Links”), which, subject to the terms and
conditions hereof, you may display as often and in as
many areas of your site as you desire. The Links will
serve to identify your site as a member of our Affiliate
Network and will establish a link from your site to ours. |
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| FitnessSingles
Agrees To: |
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| • |
Pay Affiliate
$3.00 per new Fitness Singles registration that you
refer from your site. No fees shall be payable if a visitor leaves the Fitness Singles
site without filling out the form fully (including
the following fields e-mail address, member name,
password, zip code, birthdate, and bio). |
|
| • |
Pay Affiliate on a monthly
basis when your account has reached a minimum of
$25.00. Accounts with a balance of less than $25.00
will roll over to the next month. |
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|
| Affiliate
Agrees To: |
|
| • |
Place Fitness
Singles Links on your site. |
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| • |
Have sole responsibility for
the development, operation, and maintenance of your
site and for all the materials that appear on your
site. |
|
| • |
Ensure that all materials
posted on your site are not illegal and do not infringe
on the rights of any person or entity of any kind.
We disclaim all liability for all materials on your
site. |
|
| • |
Indemnify, defend, and hold
us harmless from all claims, damages, and expenses
relating to the development, operation, and contents
of your site. |
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| |
Make sure that your site
does not copy or resemble the look and feel of
Fitness Singles
or create the impression that your site is our
site or a part of our site. |
|
| • |
Submit the URLs for all sites
you plan to use to promote Fitness Singles via
e-mail by clicking here. |
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|
| Publicity |
|
| You shall not create, publish, distribute,
or permit any written material that makes reference to
us without first submitting such material to us and receiving
our consent. |
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| Confidentiality |
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| Except as otherwise provided in
this Agreement or with the consent of the other party
hereto, each of the parties hereto agrees that all information,
including, without limitation, the terms of this Agreement,
business and financial information, customer and vendor
lists, and pricing and sales information, concerning us
or you, respectively, or any of our Affiliates provided
by or on behalf of any of them shall remain strictly confidential
and secret and shall not be utilized, directly or indirectly,
by such party for its own business purposes or for any
other purpose except and solely to the extent that any
such information is generally known or available to the
public through a source or sources other than such party
hereto or its affiliates. |
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| Limitation
of Liability |
|
| We will not be liable for indirect,
special, or consequential damages, or any loss of revenue,
profits, or data, arising in connection with this Agreement
or the Affiliate Network, even if we have been advised
of the possibility of such damages. Further, our aggregate
liability arising with respect to this Agreement and the
Affiliate Program will not exceed the total commissions
paid or payable to you under this Agreement. |
|
| Limited
License |
|
| We grant you a nonexclusive, nontransferable,
revocable right to access our site through the Links solely
in accordance with the terms of this Agreement, for the
sole purpose of linking your site to our site, solely
for the purpose of identifying your site as a participant
in the Program and assisting in increasing membership
in FitnessSingles.
You may not alter, modify, or change the Links in any
way. You are only entitled to use the Links to the extent
that you are a member in good standing of the FitnessSingles
Affiliate Program. We may revoke your license anytime
by giving you written notice. |
|
| Disclaimers |
|
| We make no express or implied warranties
or representations with respect to the FitnessSingles
Web site or the FitnessSingles
Affiliate Program (including, without limitation, warranties
of fitness, merchantability, noninfringement, or any implied
warranties arising out of course of performance, dealing,
or trade usage). In addition, we make no representation
that the operation of our site will be uninterrupted or
error-free, and we will not be liable for the consequences
of any interruptions or errors. |
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| Termination |
|
| The terms of this Agreement will
begin upon acceptance of your application. This Agreement
shall commence on the date of approval of your Affiliate
Program application and shall continue thereafter in
full
force and effect until terminated at any time by either
party by giving the other party written notice of termination.
Upon termination of this Agreement for any reason, you
will immediately cease use of, and remove from your
site,
all Links to our site, and all Fitness Singles.com trademarks,
trade dress, and logos, and all other materials provided
by or on behalf of us to you pursuant hereto or in connection
with the Program. |
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| Modifications |
|
| We may modify any of the terms and
conditions of this Agreement at any time. You will be
notified by email, and a change notice will be posted
on our site. If the modifications are unacceptable to
you, your only recourse is to terminate this Agreement.
Your continued participation in this Affiliate Program
after a change notice has been posted will constitute
binding acceptance of the change. |
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| Anti-Spam
Policy |
|
| Affiliates will be removed from
the FitnessSingles
Affiliate Program and forfeit any pending commissions
if they are caught spamming. Spamming is not allowed and
will not be tolerated! |
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| Independent
Contractors |
|
| You and FitnessSingles
are independent contractors and nothing in this Agreement
will create any partnership, joint venture, agency, franchise,
sales representative, or employment relationship between
the parties. You will have no authority to make or accept
any offers or representations on our behalf. |
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| Representations
and Warranties |
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| You hereby represent and warrant
to us as follows: |
|
| 1. |
This Agreement
has been duly and validly executed and delivered
by you and constitutes your legal, valid, and binding
obligation, enforceable against you in accordance
with its terms. |
|
| 2. |
The development, operation,
and contents of your site do not infringe upon the
copyright, trademark, or any other right of any
person or entity. |
|
|
| Independent
Investigation |
|
| You acknowledge that you have read
this Agreement and agree to all its terms and conditions.
You understand that we may at any time (directly or indirectly)
solicit customer referrals on terms that may differ from
those contained in this Agreement or operate Web sites
that are similar to or compete with your Web site. You
have independently evaluated the desirability of participating
in the FitnessSingles
Affiliate Program and are not relying on any representation,
guarantee, or statement other than as set forth in this
Agreement. |
|
| Fraud |
|
| If you commit fraud or falsify
information in connection with the registration of members
in FitnessSingles
through the Links on your site, this Agreement will
be
terminated immediately. In addition, you will be liable
to Fitness Singles for any and all damages that Fitness
Singles suffers as a result of such actions. You will
also be
responsible for returning to FitnessSingles
all commissions received for fraudulent/falsified members,
and we will not hesitate to pursue all legal causes of
action against you to the fullest extent possible under
the law. |
|
| Anti-Predatory
Advertising Policy |
|
| Affiliates will be removed from
the FitnessSingles
Affiliate Program and forfeit any pending commissions
if they are utilizing or distributing software downloads
that potentially enable diversions of commission from
other affiliates in our program. |
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| Assignment |
|
| This Agreement and the rights and
obligations hereunder may not be assigned by you without
prior written consent of FitnessSingles. |
|
| Reservation
of Rights |
|
| FitnessSingles
may terminate this Agreement at any time if your site
is determined (at our sole discretion) to be unsuitable
for the Program, even if your site has not changed since
the time that your Affiliate Program application was accepted.
FitnessSingles
also reserves the right to monitor Affiliate sites at
any time to determine whether they are in compliance with
this Agreement. |
|
| Governing
Law |
|
| This Agreement will be governed
by the laws of the United States and Virginia, without
reference to rules governing choice of laws. Any action
relating to this Agreement must be brought in the federal
or state courts located in Richmond, VA, and you irrevocably
consent to the jurisdiction of such courts. You may not
assign this Agreement, by operation of law or otherwise,
without our prior written consent. Subject to that restriction,
this Agreement will be binding on, inure to the benefit
of, and enforceable against the parties and their respective
successors and assigns. Our failure to enforce your strict
performance of any provision of this Agreement will not
constitute a waiver of our right to subsequently enforce
such a provision or any other provision of this Agreement. |
|
| I indicate
my approval of this Agreement and desire to become an
Affiliate under these terms and conditions by filling
out and submitting the Affiliate Application
Form. |
