|
Cyber
Delights Affiliate Agreement - Terms and Conditions
In this
Agreement, "Cyber Delights," "we," and "us" means Cyber Delights
Limited., and "you", or "Affiliate" means the applicant desiring to
participate in the Cyber Delights Affiliate Programme (the "Affiliate
Programme"). "Link" or "Links" refers to any hypertext link, URL,
banner, graphical or text ad containing a reference to Cyber Delights
or its products or services or web properties pursuant to this
Agreement. The "Cyber Delights Site" or "Our Site" means the web site
located at http://www.cyberdelights.co.uk or other Cyber
Delights-owned Internet properties, "our" meaning belonging to or
pertaining to Cyber Delights. "Your Site" means the web site or sites,
or other online marketing venues upon which that you establish the
Links to Our Site as part of the Affiliate Programme. The term "Cyber
Delights Services" means any Cyber Delights service or product as well
as any services or products that Cyber Delights may introduce from
time to time in the future and offer through the Affiliate Programme.
1. Eligibility for the Cyber Delights Affiliate Program
1.1.
Eligibility
| 1.1.1.
|
To enroll in the
Affiliate Programme, you must have a website. Acceptance into the
Programme is at our sole discretion, which may be withheld for any
reason or for no reason at all. |
| 1.1.2. |
You agree to keep your
affiliate contact information accurate and updated with Cyber
Delights. Cyber Delights’ rights and obligations with respect to
the disclosure and use of the information we gather about any
Affiliate are governed by the terms of this Agreement and Cyber
Delights’ Policy such information may be used for Cyber Delights’
internal accounting, promotional or legal processes. |
1.2. Suitability
We may reject your participation in this Programme if we determine, at
any time and at our sole discretion, that Your Site is unsuitable for
the Programme. Your Site may be deemed by us to be unsuitable if, in
our view, it:
| 1.2.1. |
contains, promotes or links to
discriminatory, sexually explicit or violent material; |
| 1.2.2. |
promotes, depicts or links to
material that promotes or depicts discrimination based on race,
gender, religion, national origin, physical or mental disability,
or age; |
| 1.2.3. |
contains unlawful material,
including but not limited to materials that may violate another's
intellectual property rights, or links to a site that contains
such material; |
| 1.2.4. |
contains information regarding,
promotes or links to a site that provides information or promotes
illegal activity; or |
| 1.2.5. |
for any other reason that is deemed
by us to be unsuitable. |
1.3.
You understand that Cyber Delights reserves the right to conclude that
Your Site is unsuitable in accordance with our standards, in our sole
discretion, and we may come to such a conclusion even if it is based
upon our opinion or mere suspicion or belief, without any duty to
prove that our opinion or suspicion is well-founded and even if our
opinion or suspicion is proven not to be well-founded or if others'
sites have not been deemed unsuitable despite having the same or
similar characteristics as Your Site.
2. Usage
2.1.
Subject to the terms of this Section, we will provide to you all
Links, and any related banners, graphics, or text ads necessary to
promote and offer the Cyber Delights Services to Your Site's visitors
and/or its members. The Link may consist of ads containing text or
graphic images provided by us (and is subject to change from time to
time in our sole discretion) and may contain our logo or other
references to Cyber Delights. This Link will connect Your Site with
the area on Our Site where the visitor may apply for the Cyber
Delights Services directly with us. The Link will serve to identify
you as a member of our Affiliate Programme and will establish a Link
from Your Site to Our Site.
2.2.
In utilizing any Cyber Delights provided Link, you agree that you will
cooperate fully with us in order to establish and maintain such Link.
You also agree that you will display only those Links that are
provided by us, and you will substitute such Links with any new or
update Links provided by us from time to time throughout the term of
this Agreement. All Links may be modified by us and/or expanded from
time to time throughout the term of this Agreement.
2.3.
Each Link connecting users of Your Site to the pertinent area of Our
Site shall in no way alter the look, feel or functionality of Our
Site.
2.4.
You may not use unsolicited commercial e-mail (UCE), spam, search
engine spam, or other illegal or unethical means by which to generate
referral commissions.
2.5.
To obtain permission to advertise the Link in ways not specifically
covered in this Agreement, you must e-mail affiliate@cyberdelights.co.uk
with your proposed advertising method, affiliate ID, and personal
contact information and we will then contact you regarding this
request. Such requests will be given due consideration, however, Cyber
Delights reserves the right to deny any such requests without reason
or justification, in Cyber Delights’s sole discretion.
2.6.
You understand that the Links and any related banners, graphics,
artwork, or text are Cyber Delights's intellectual property, and that
your use of those links is governed by the terms of Section 9 of this
Agreement and by relevant Laws of England and Wales, and International
Law
3. Our Responsibilities
3.1.
We will be responsible for providing all information necessary to
allow you to make appropriate Link from Your Site to Our Site. We will
be solely responsible for processing every order application for Cyber
Delights products or services placed by a customer following a Link
from Your Site, for tracking the number and amount of sales generated
by the Link from Your Site, and for providing information to you
regarding commission payments. Also, we will be responsible for credit
card authorisations, payment processing, cancellations, returns, and
related customer service for the Cyber Delights Services, it being
understood that such activities shall be for our account. We are
responsible for establishing commission schedules and payouts of
earned Commissions as detailed in Section 6 of this Agreement.
4. Your Responsibilities
4.1.
If you qualify and agree to participate as a Cyber Delights Affiliate:
| 4.1.1.
|
You may display the provided Link
prominently throughout Your Site as you see fit and without our
prior consent subject to the terms and limitations of this
Agreement. |
| 4.1.2.
|
You may not be entitled to
participate and promote on Your Site any sweepstakes, contests,
and special promotions we may offer, and in connection therewith,
only upon our discretion shall we make such contests and
promotions available to users of Your Site. If we do decide to
allow affiliates to participate, you will be provided with
approved licensed ads only for those you are allowed to offer, and
you may become entitled to earn referral fees as set forth in
Articles 5 and 6 below. |
| 4.1.3.
|
You shall not misrepresent Cyber
Delights or its products or services, or otherwise make any
claims, representations, or warranties in connection with Cyber
Delights other than as expressly authorized by Cyber Delights, and |
| 4.1.4.
|
You shall have no authority to, and
shall not bind Cyber Delights to any obligations, except as may be
expressly set forth herein to the contrary or as otherwise agreed
to and approved in advance in writing by Cyber Delights. Nothing
in this Agreement nor any conduct of either party shall be deemed
to constitute an employment or agency relationship. |
4.2.
You are solely responsible for ensuring that Your Site and your
products and services that you offer from Your Site comply with all
applicable copyright and other laws including anti-spam laws. You must
have express permission to use another party's copyrighted or other
proprietary material. We will not be responsible if you use another
party's copyrighted or other proprietary material on Your Site in
violation of the law or any agreement, and your indemnity as outlined
in Section 16 will protect us if you do so.
4.3.
You are solely responsible for the development, operation and
maintenance of Your Site and for all materials that appear on Your
Site. Such responsibilities include, but are not limited to, the
technical operation of Your Site and all related equipment; the
accuracy and propriety of materials posted on Your Site; and ensuring
that materials posted on Your Site do not violate or infringe upon the
rights of any third party and are not libelous or otherwise illegal.
We disclaim all liability for all such matters.
4.4.
The Affiliate hereby undertakes to comply with all applicable EU- and
national laws and regulations in force from time to time including,
but not limited to, the EU-directive 2002/58/EC.
You may not:
| 4.4.1.
|
directly or indirectly offer any
person or entity any consideration or incentive (including,
without limitation, payment of money (including any rebate), or
granting of any discount or other benefit) for using the Link on
your site to access Our Site without prior approval |
| 4.4.2.
|
read, intercept, record, redirect,
interpret, or fill in the contents of any electronic form or other
materials submitted to us by any person or entity; |
| 4.4.3.
|
take any action that could
reasonably cause any customer confusion as to our relationship
with you, or as to the site on which any functions or transactions
(e.g., search, order, browse, and so on) are occurring; |
| 4.4.4.
|
other than providing the Link on
your site in accordance with this Agreement, post or serve any
advertisements or promotional promoting Our Site or otherwise
around or in conjunction with the display of the Cyber Delights
Site (e.g., through any "framing" technique or technology or
pop-up or pop-under windows); or |
| 4.4.5.
|
seek to purchase or register any
keywords, search terms or other identifiers that include the trade
or service marks or names of Cyber Delights's primary competitors, including misspellings or
variations thereof for use in any search engine, portal, sponsored
advertising service or other search or referral service. |
| 4.4.6.
|
seek to purchase or register any
domains or other identifiers that include variations on the trade
or service marks or names of Cyber Delights intended to
approximate misspellings or typographical mistakes of same or
which otherwise would constitute typo or domain squatting,
including variations thereof for use in any search engine, portal,
sponsored advertising service or other search or referral service. |
4.5.
If we determine, in our sole discretion, that you have engaged in any
of the activities outlined in Section 4.4, we may (without limiting
any other rights or remedies available to us) withhold any Commissions
otherwise payable to you under this Agreement and/or terminate this
Agreement.
4.6.
We have the right, but not the obligation, in our sole discretion, to
monitor Your Site and your usage of the Link at any time and from time
to time to determine if you are in compliance with the terms of this
Agreement.
4.7.
You are responsible for the payment of all tax and national insurance
payable on any payments made to you by Cyber Delights.
5. Referral Fees
5.1.
Subject to the Payments and Fees Schedule, we will pay you, a single
referral fee ("Commission") on sales of Cyber Delights Services to
third parties who are not already Cyber Delights customers. Your
entitlement to an earned commission will accrue only if the customer:
| 5.1.1.
|
accesses Our Site through the use
of a Link on Your Site; |
| 5.1.2.
|
purchases the Cyber Delights
Services using our online signup process; |
| 5.1.3.
|
remits full payment to us; and |
| 5.1.4.
|
remains a customer beyond the Cyber
Delights Guarantee Period. |
5.2.
The Affiliate Programme is intended for commercial use only
6. Payments and Fee Schedule
6.1.
You will earn Commissions based on the sale of Cyber Delights Services
according to the current fee schedule for the Affiliate Programme and
the guidelines of this Agreement, set forth herein, during the month
in which such services are sold. We reserve the right to modify the
commission value of a sold product or service at any time.
6.2.
The Commissions are accumulated for every unique paying customer
referred to us by Your Site, utilizing the Links between Your Site and
Our Site, excluding sales/amounts due to credit card or other fraud,
charge backs and bad debt and credits for cancelled services ("Net
Sales"). We reserve the right to delay payment for up to sixty (60)
days (the "Guarantee Period") to allow for the aforementioned actions
to take place.
6.3.
Payment will be made to you either via PayPal on email address which
is on file with Cyber Delights or via mailed check to your address on
file with Cyber Delights, at our discretion
6.4.
Cyber Delights will track the Commissions earned per Agent/Affiliate.
Cyber Delights will track all Commissions earned and may, at its
absolute discretion, decide not to pay any Commission to you should
Cyber Delights believe that any referral has been made in violation of
its technical guidelines, due to referral/affiliate fraud, or due to
referral/affiliate contract cancellation. It is the Affiliate's sole
and absolute duty to follow precisely this Agreement and its
guidelines at all times. Cyber Delights is under no obligation
whatsoever to pay any Commission to any Affiliate who does not
strictly follow this Agreement and its guidelines, as modified from
time to time. Cyber Delights determination of the commissions due
shall be dispositive.
6.5.
Cyber Delights reserves the right to prosecute or take legal action
against any fraud, or conspiracy to defraud and to recover any
Commissions paid to an Affiliate which were earned as a result of such
fraud. Fraud includes knowingly violating the terms and spirit of this
Agreement.
7. Policies and Pricing
7.1.
Customers who buy Cyber Delights Services through the Affiliate
Programme will be deemed to be customers of Cyber Delights after they
have passed beyond the Cyber Delights Guarantee Period. Accordingly,
all of our rules, policies, and operating procedures concerning
customer applications, customer service, and sales of our services
will apply to those customers. We may change our policies and
operating procedures at any time. For example, we will determine the
prices to be charged for Cyber Delights Services sold through the
Programme in accordance with our own pricing policies. Service prices
may vary from time to time.
8. Publicity
8.1.
You shall not create, publish, distribute, or permit any written or
graphical material that makes reference to Cyber Delights other than
those mentioned in this Agreement or otherwise provided by Cyber
Delights, without our prior written consent, which may be granted, in
our sole discretion, provided such materials are not in direct
conflict with Cyber Delights own marketing efforts.
9. Licenses and Use of the Cyber Delights Logos and Trademarks
9.1.
We grant you a non-exclusive, non-transferable, revocable right:
| 9.1.1.
|
to access Our Site through the Link
solely in accordance with the terms of this agreement; and |
| 9.1.2.
|
solely in connection with the Link,
to use our logos, trade names, trademarks and similar identifying
material relating to us and which we provide to you (collectively,
the "Licensed Materials"), for the sole purpose of establishing a
link to Our Site so users of Your Site can purchase Cyber Delights
Services. |
9.2.
You may not alter, modify or change the Link or Licensed Materials in
any way. You may use only authorized, licensed advertising creatives
or ads.
9.3.
Other than establishing a link from Your Site to Our Site, you shall
not make any use of any Licensed Materials without first obtaining our
prior written consent. You shall not use the Licensed Materials in any
manner that is disparaging or that otherwise portrays us in a negative
light. We reserve all of our rights in the Licensed Materials and of
our other proprietary rights. We, in our sole discretion, may revoke
your license to use our Link or the Licensed Materials at any time.
Affiliate shall comply with all guidelines provided by Cyber Delights
with respect to the text or graphic reproduction, appearance, and
"look and feel" related to the marketing and representation of the
Links and Cyber Delights.
9.4.
The licenses described in this Section 9 shall expire upon the
effective date of the expiration or termination of this Agreement, and
is dependent upon your status as defined in Section 1.
9.5.
Any unauthorized use of the Cyber Delights links, text, banners or
other ads not approved of or provided by Cyber Delights may be cause
for immediate termination of this Agreement.
9.6.
Except for the license granted under this Section 9, you do not obtain
any rights under this Agreement in any intellectual property,
including, without limitation, any intellectual property with respect
to the Licensed Materials, the Link, link formats, technical
specifications, guidelines or graphical artwork referenced above, or
with respect to the CyberDelights.co.uk, Cybertize.co.uk,
Cheekylove.com and Datedebut.com domain names. You shall not assert
the invalidity, unenforceability, or contest the ownership by Cyber
Delights of the Licensed Materials, the Cyber Delights Site, or any
related, links, artwork, logos or other materials in any action or
proceeding of whatever kind or nature, and shall not take any action
that may prejudice Cyber Delights’s rights in the marks, render the
same generic, or otherwise weaken their validity or diminish their
associated goodwill.
9.7.
You grant to us a non-exclusive license to utilize your company name
and logo, as the same may be amended from time to time (the "Affiliate
Trademarks"), to advertise, market, promote and publicize in any
manner your participation in the Programme or our rights hereunder;
provided, however, that we shall not be required to so advertise,
market, promote or publicize.
10. Term of this Agreement and Termination
10.1.
The term of this Agreement will begin upon your acceptance of this
Agreement, by your use of an assigned Cyber Delights affiliate link,
and/or our acceptance of your application for the Affiliate Programme,
and will end when terminated by either party. Cyber Delights may
terminate this Agreement immediately at any time, with or without
cause. Should you cease your publication of the Link this Agreement
shall be deemed terminated by you. Violation of this Agreement shall
constitute grounds for immediate termination of this Agreement.
10.2.
Upon termination of this Agreement:
|
10.2.1. |
Cyber Delights's acceptance of referrals obtained through Your
Site shall not constitute a continuation or renewal of this Agreement
or a waiver of such termination; |
|
10.2.2. |
you shall be entitled only to those
Commissions, if any, earned by you on or prior to the date of
termination excluding amounts due to actual fraud, credit card
fraud, credit card chargebacks and
bad debt and credits for cancelled services or as otherwise in
violation of this Agreement; |
|
10.2.3. |
you shall in no event be entitled
to Commissions with respect to referrals delivered after the date
of termination, irrespective of whether any service or product
order, contract, or commitment relating thereto was entered into
prior to the date of termination; |
|
10.2.4. |
upon termination, your rights and
licenses under this agreement shall immediately terminate and you
shall remove the Link or other Licensed Materials from Your Site;
and |
|
10.2.5. |
you shall return to Cyber Delights
any confidential information, and all copies thereof, in its
possession, custody and control and will cease all uses of any
trade names, trademarks, service marks, logos and other
designations of Cyber Delights and the Affiliate Programme. |
10.3.
We may withhold payment of Commissions, or any portion thereof, for a
reasonable time to ensure that the correct amount is, although
generally payments will continue to follow the schedule as outlined in
Article 6.
10.4.
Upon any termination of this Agreement, you and Cyber Delights will be
released from all obligations and liabilities to the other occurring
or arising after the date of such termination or the transactions
contemplated hereby, except with respect to those obligations which by
their nature are designed to survive termination as provided herein;
provided that no such termination will relieve you from any liability
arising from any breach of this Agreement occurring prior to
termination.
10.5.
The Affiliate consents to Cyber Delights sending newsletters etc to
the Affiliate's e-mail address and using the information given by the
Affiliate for marketing purposes.
11. Modification
11.1.
We reserve the right to modify any of the terms and conditions
contained in this Agreement at any time and in our sole discretion.
Modifications may include, but are not limited to, changes in the
scope of available referral fees, commission schedules, payment
procedures and Programme rules. If any modification is unacceptable to
you, your only recourse is to terminate this agreement as provided in
article 10.
11.2.
Your continued participation in the Programme following our posting of
a change notice or new Agreement on Our Site will constitute binding
acceptance of the change. No amendment, modification or supplement to
this Agreement shall be effective unless it is posted by an authorized
representative of Cyber Delights at the Cyber Delights Web Site.
12. Relationship of Parties
12.1.
You and Cyber Delights 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. You will not make any statement,
whether on Your Site or otherwise, that reasonably would contradict
anything in this Section.
13. Representations and Warranties
13.1.
You hereby represent and warrant to us that you are the sole and
exclusive owner of the Affiliate Trademarks and have the right and
power to grant to us the license to use your trademarks in the manner
contemplated herein, and such grant does not and will not:
|
13.1.1. |
breach, conflict with or constitute
a default under any agreement or other instrument applicable to
you or binding upon your assets or properties, or |
|
13.1.2. |
infringe upon any trademark, trade
name, service mark, copyright or other proprietary right of any
other person or entity. |
13.2.
You further represent that:
|
13.2.1. |
You are duly organized, validly
existing, and in good standing under the laws of the state or
country of your origin, or you are an adult at least eighteen (18)
years of age; |
|
13.2.2. |
you have all requisite power and
authority to enter into this Agreement and to carry out and
perform its obligations under the terms of this Agreement; |
|
13.2.3. |
This Agreement has been duly
authorized, executed, and delivered by you and is a valid and
binding obligation enforceable in accordance with its terms; and |
|
13.2.4. |
The execution, delivery, and
performance of and compliance with this Agreement does not and
will not (i) conflict with, or
constitute a default under, or result in the creation of, any
mortgage, pledge, lien, encumbrance or charge upon any of your
properties or assets, nor result in any violation of any term of your
governing documents, (ii) in any material respect, any term or
provision of any mortgage, indenture, contract, agreement, instrument,
judgment or decree, or (iii) to the best of your knowledge, any order,
status, rule or regulation applicable to you, the violation of which
would have a material adverse effect on your business or properties |
14. Confidentiality
14.1.
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 or
through a source or sources other than such party hereto or its
affiliates.
14.2.
Notwithstanding the foregoing, each party is hereby authorized to
deliver a copy of any such information
|
14.2.1. |
to any person pursuant to a
subpoena issued by any court or administrative agency, |
|
14.2.2. |
to its accountants, attorneys or
other agents on a confidential basis |
15. Limitation of Liability
15.1.
Without limiting the generality of the foregoing, Cyber Delights shall
in no event be liable to you or any other person, including, without
limitation, subscribers, for indirect, incidental, or special damages,
lost profits, lost savings, or any other form of consequential
damages, regardless of the form of action, even if Cyber Delights has
been advised of the possibility of such damages, whether resulting
from breach of its obligations under this agreement or otherwise.
Further, our aggregate liability arising with respect to this
agreement and the programme will not exceed the total referral fees
paid or payable to you under this agreement.
15.2.
Cyber Delights makes no warranties, either express or implied,
concerning the performance or functionality of the Cyber Delights
services, or our affiliate programme, including but not limited to the
link or other affiliate advertisements and hereby expressly disclaims
all implied warranties, including warranties of merchantability or
fitness for a particular use or purpose.
15.3.
Under no circumstances shall Cyber Delights. Be liable to you or any
other person or entity, including, without limitation, customers, for
any loss, injury, or damage, of whatever kind or nature, resulting
from or arising out of any mistakes, errors, omissions, delays, or
interruptions in the receipt, transmission, or storage of any messages
or information arising out of or in connection with the affiliate
programme or Cyber Delights.
16. Indemnification
16.1.
You hereby agree to indemnify and hold harmless Cyber Delights, its
sister companies, subsidiaries and affiliates, and their directors,
officers, employees, agents, shareholders, partners, members and other
owners, against any and all claims, actions, demands, liabilities,
losses, damages, judgments, settlements, expenses (including
reasonable attorneys' fees), and costs (any or all of the foregoing
hereinafter referred to as "Losses") insofar as such Losses (or
actions in respect thereof) arise out of or are based on, or in any
way connected with this Agreement, including but not limited to:
|
16.1.1. |
any breach by you of any warranty,
representation, or agreement contained herein, |
|
16.1.2. |
the performance of your duties and
obligations hereunder, |
|
16.1.3. |
your negligence, |
|
16.1.4. |
any injury (including death) to
persons or damages to property caused directly or indirectly by
your negligent or intentional acts or omissions, or |
|
16.1.5. |
the unauthorized use of any Cyber
Delights intellectual property, including but not limited to the
banners, logos, text or graphics; Cyber Delights, and or any part
of the Affiliate Programme. |
|
16.1.6. |
any claim that our use of the
Affiliate Trademarks infringes on any trademark, trade name,
service mark, copyright, license, intellectual property, or other
proprietary right of any third party, |
|
16.1.7. |
any misrepresentation of a
representation or warranty or breach of a covenant and agreement
made by you herein, |
|
16.1.8. |
the development, operation,
maintenance and of Your Site and products and services offered
from Your Site, or |
|
16.1.9. |
any claim related to Your Site,
including, without limitation, therein not attributable to us. |
17. Notification
17.1.
All notices to us in connection with this Agreement shall be deemed
given as of the day they are received either by messenger, delivery
service or Royal Mail, postage prepaid, certified or registered,
return receipt requested, and addressed as follows:
Cyber Delights Limited,
P O Box 440,
Northolt,
UB5 9BX,
United Kingdom
Attention: Affiliate Programme Manager
17.2.
Any notice under this Agreement shall be given by Cyber Delights to
you via e-mail at the address provided by you to Cyber Delights at the
commencement of this Agreement or as Cyber Delights is subsequently
advised. Notice to you at this address is deemed sufficient regardless
of your receipt of such e-mail.
18. Independent Investigation
18.1.
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 site. You have independently evaluated
the desirability of participating in the programme and are not relying
on any representation, guarantee, or statement other than as set forth
in this Agreement.
19. Confidential Information
19.1.
You acknowledge that, during the term of this Agreement, you may be
entrusted with confidential information relating to the business,
operations, or underlying technology of Cyber Delights and/or the
Affiliate Programme (the "Confidential Information"). You shall
provide care to avoid disclosure or unauthorized use of the
Confidential Information to any other person or entity.
19.2.
You shall not use the Confidential Information for purposes other than
those necessary to further the purposes of this Agreement. You shall
not disclose the Confidential Information to third persons or outside
parties without the prior written consent of Cyber Delights. Should
you be required under applicable law, rule or regulation, or pursuant
to the order of any court or governmental entity of legal process of
any governmental entity of competent jurisdiction to disclose
Confidential Information in its possession, custody or control, you
shall:
|
19.2.1. |
give at least thirty (30) days
prior written notice of such disclosure to Cyber Delights; |
|
19.2.2. |
use its best efforts to limit such
disclosure; and |
|
19.2.3. |
make such disclosure only to the
extent so required. |
19.3.
Your obligations hereunder with respect to Confidential Information
shall survive the expiration or earlier termination of this Agreement.
20. Miscellaneous
20.1.
Assignability: You shall not assign or delegate its obligations under
this Agreement, either in whole or in part, without the prior written
consent of Cyber Delights, in its sole discretion. Any attempted
assignment in violation of the provisions of this Agreement, whether
by operation of law or otherwise, will be void. This Agreement is not
intended to and shall not be construed to provide any rights, remedies
or benefits to or for any person or entity not a party to this
Agreement. Subject to that restriction, this Agreement will be binding
on, inure to the benefit of, and be enforceable against the parties
and their respective successors and assigns.
20.2.
Severability: If any provision of this Agreement, or the application
thereof to any person or circumstance, shall be held invalid or
unenforceable under any applicable law, such invalidity or
unenforceability shall not affect any other provision of this
Agreement that can be given effect without the invalid or
unenforceable provision, or the application of such provision to other
persons or circumstances, and, to this end, the provisions hereof are
severable.
20.3.
Non-Waiver: No delay or failure by Cyber Delights in exercising any
right under this Agreement, and no partial or single exercise of that
right, shall constitute a waiver of that or any other right.
20.4.
Remedies: The rights and remedies of Cyber Delights hereunder shall
not be mutually exclusive, i.e., the exercise of one or more of the
provisions hereof shall not preclude the exercise of any other
provision hereof. You acknowledge, confirm, and agree that damages may
be inadequate for a breach or a threatened breach of this Agreement
and, in the event of a breach or threatened breach of any provision
hereof, the respective rights and obligations hereunder shall be
unenforceable by specific performance, injunction, or other equitable
remedy. Nothing contained in this Agreement shall limit or affect any
rights at law or otherwise of Cyber Delights for a breach or
threatened breach of any provision hereof, it being the intent of this
provision to make clear that the respective rights and obligations of
Cyber Delights shall be enforceable in equity as well as at law or
otherwise.
20.5.
Interpretation: This Agreement shall not be construed or interpreted
in favor or against Cyber Delights or you on the basis of
draftsmanship or preparation of the Agreement.
20.6.
Headings: The headings, captions, and other typographical formatting
used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement
21. Governing Law
21.1.
This Agreement shall be governed by, and construed in accordance with
the laws of England. Cyber Delights shall not be liable for the
legality of Cyber Delights's service in countries other than the
United Kingdom. The Affiliate is solely responsible for the legality
of the use of the service if the Affiliate is registered to Cyber
Delights's service from a country other than the United Kingdom or if
the Affiliate's website is on a server in a country other than the
United Kingdom.
22. Dispute Resolution
22.1.
This Agreement shall be construed and governed in all respects in
accordance with the Law of England and Wales and the English Courts
shall have exclusive jurisdiction in respect of any disputes arising
hereunder. Cyber Delights shall not be liable for the legality of
Cyber Delights's service in countries other than the United Kingdom.
The Affiliate is solely responsible for the legality of the use of the
service if the Affiliate is registered to Cyber Delights's service
from a country other than the United Kingdom or if the Affiliate's
website is on a server in a country other than the United Kingdom.
22.2.
If any dispute arises out of this Agreement the Parties will attempt
to settle it by mediation in accordance with the Model Mediation
Procedure of the Centre for Dispute Resolution ('CEDR') or such other
mediation procedure as the parties may agree in writing. To initiate
the mediation one Party must give notice in writing ('the ADR Notice')
to the other Party requesting a mediation in accordance with this
clause. The mediation is to take place not later 28 days after the
giving of the ADR Notice. If there is any issue upon which the Parties
cannot agree within 14 days after the giving of the ADR Notice, CEDR
(or such other mediation body as the Parties may have agreed) will, at
the request of either Party, decide the issue for the Parties, having
consulted with them
23. Execution and Acceptance
23.1.
By using a Link provided by Affiliate Programme, you execute, accept,
enter into, and become party to this Agreement. At such point, Cyber
Delights simultaneously and automatically becomes counter-party to
this Agreement. The Effective Date of such Agreement is the day on
which Link is used by you.
24. Entire Agreement
24.1.
Together with the above guidelines, this Agreement constitutes the
entire agreement between the Parties. No prior or contemporaneous
written or oral representation of the Affiliate Programme form a part
of this Agreement, and this Agreement supersedes all prior agreements
between the Parties relating to the subject matter of this Agreement.
25. Attorneys Fees
25.1.
In the event Cyber Delights shall commence formal legal action to
interpret and/or enforce the terms of this Agreement, the prevailing
party in any such action or proceeding shall be entitled to recover,
in addition to all other available relief, its reasonable attorneys'
fees and costs incurred in connection therewith. |
