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HaveAnAffair Member Agreement

C & Z Tech Limited, a New Zealand registered company of Level 12, 19 Victoria Street West, Auckland 1010, New Zealand ("we," "us" or, "HaveAnAffair") operate the websites haveafling.mobi, haveafling.co.nz, haveanaffair.co.nz, haveanaffair.mobi, hookupdating.mobi and the mobile application "Have A Fling" ("Websites") which provide an interactive way for like-minded users to explore whether they wish to meet each other, chat with each other and/or explore casual or extra-marital relationships (our Websites and such services, collectively, our "Service").

Your use of our Service is subject to the following Terms and Conditions of Use (these "Terms") set out in this Member Agreement ("Agreement"). The terms "you", "your" and "yourself" each means the person who accesses the Service whether or not such person is a paid member.

A person may apply to become a registered member of the Service ("member") by completing the registration details on the Websites and clicking the tick box to indicate that they agree to these Terms ("Registration Process").

This Agreement is a legal contract made between you and us. Your use of the Service (whether or not you are a paid member) will be governed by these Terms and our Privacy Policy, and in the case of the use of the Service through the HaveAnAffair mobile application, the End User Licence Agreement for Mobile Devices. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT COMPLETE THE REGISTRATION PROCESS OR USE OR ACCESS THE SERVICE.

WE RESERVE THE RIGHT TO MAKE CHANGES ON REASONABLE GROUNDS TO THESE TERMS AT ANY TIME, AND ANY SUCH CHANGES WILL BE POSTED ON OUR WEBSITES. YOU WILL BE GIVEN REASONABLE TIME TO ACCESS, READ AND CONSIDER ANY CHANGES. YOUR CONTINUED USE OF OUR SERVICE CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGES. YOU ARE RESPONSIBLE FOR REVIEWING OUR WEBSITES REGULARLY TO OBTAIN TIMELY NOTICE OF ANY SUCH CHANGES. IF YOU DO NOT AGREE TO THESE TERMS, AS AMENDED AND UPDATED FROM TIME TO TIME, DO NOT CONTINUE TO USE OR ACCESS THE SERVICE. YOU CAN TERMINATE THIS AGREEMENT IMMEDIATELY ON NOTICE TO US WITHOUT PENALTY IF YOU DO NOT AGREE WITH THE UPDATED TERMS.

1. Eligibility

1.1 You may not be a member of our Service if:

a. you cannot form a legally binding contract. In any case, you must be at least 18 years old to become a member;

b. you have ever been convicted of a violent or sexually related criminal offence in any country and/or are required to register as a sex offender with any government entity; or

c. you have previously been banned from using our Service;

By registering as a member, you warrant to us that you comply with all of these requirements. If you breach this warranty, without limitation to our other rights and remedies, we are entitled to terminate this Agreement under section 9 below.

We do not currently conduct criminal background screenings on our members. However, we reserve the right to conduct any criminal background check, at any time and using available public records, to confirm your compliance with this section. By agreeing to these Terms, you hereby authorise any check.

1.2 HaveAnAffair endeavours, and employs staff to, monitor profiles and photos but is under no obligation to monitor profiles and photos. Without limiting any other remedies available to us (including our rights to terminate in section 9 below), we reserve the right at any time to suspend or remove your profile and any content you submit from our Websites at our sole discretion. To the maximum extent permitted by law, if we do remove your profile and/or any content you submit we will not be liable to you in any way.

1.3 By creating an account you understand that your profile and details will appear on other Websites within the HaveAnAffair network including, but not limited to: HaveAnAffair.co.nz, HaveAFling.co.nz, HaveAnAffair.mobi, HaveAFling.mobi and the HaveAFling, HaveAnAffair, Hook Up Dating mobile applications.

2. Your interactions with other members

2.1 You make contact with other members entirely at your own risk. You are legally responsible for your own actions. Members of dating websites have been the victims of fraudulent scams and you are responsible for protecting yourself against persons who attempt to defraud you or mislead you using the Service. You agree that HaveAnAffair has no responsibility or liability for any actions of you or other members including, without limitation, members that have registered under false pretences or who attempt to defraud or harm you. HaveAnAffair is not responsible for ensuring members comply with these Terms.

2.2 You must not communicate with, or attempt to communicate with, any person who has indicated that he or she does not wish to communicate with you or to continue to communicate with you.

2.3 HaveAnAffair may be requested to assist in any prosecutions or other proceedings brought by members or third parties against other members and will do so if required by law and may do so if we believe a member has breached our Terms. You agree to us providing such assistance, including the release of any relevant information we may hold about you.

2.4 Members may not be who they say they are. HaveAnAffair is unable to confirm that any member on our Websites is who they say they are. You must therefore exercise caution when dealing with other members. As an Internet-based service, there are risks of members misrepresenting themselves or presenting themselves under false pretences. This includes misrepresentations about age, gender, marital status or any other attribute which we ask the member to provide. It is also possible that members from other countries will access this service. It may not be practically possible for HaveAnAffair to enforce these terms and conditions against such members. If we receive a complaint from a member that another member is in breach of section 4.5 or any other section of these Terms, we will investigate such complaint and consider whether to exercise our rights under these Terms, including our rights to terminate that member's access to the Service under section 9.

2.5 Without limiting any right that we may have, we may, at our sole discretion, edit, modify, or delete content from your profile, delete any other content or material you have posted to our Websites, or suspend or cancel your membership if we believe that content entered creates, or may create, liability for HaveAnAffair or if we believe the information to be misleading or inappropriate or if we believe you have breached these Terms. To the maximum extent permitted by law, we are not liable to you if we exercise any of these rights, including cancellation of any type of membership.

2.6 HaveAnAffair reserves the right to decline to register without entering into further discussions with you, or to suspend your membership if we believe on reasonable grounds that you are in breach of these Terms.

2.7 We may not be able to provide matches for everyone seeking to use the Service. Further, we make no guarantees as to the number or frequency of matches, or to such matches ability, desire or criteria to communicate with any user. You understand that we make no guarantees, either express or implied, regarding your ultimate compatibility with individuals you meet through the Service or as to the conduct of such individuals.

3. Virtual Profiles

3.1 You acknowledge and agree that the Website uses Virtual Profiles.

3.2 Virtual Profiles are used to generate excitement on the Websites, to provide entertainment and amusement to members, to encourage greater participation and interactions on the Websites, to enhance member enjoyment of the Services, and to monitor the use and behaviours of members so we can enhance and improve our Services and better target third party advertisements.

3.3 We may also use Virtual Profiles to ensure members are complying with the terms of this Agreement, or for legal compliance purposes.

3.4 You acknowledge and agree that:

a. Virtual Profiles are entirely fictitious, do not represent real people, and are created by us or our software;

b. any interaction you have with a Virtual Profile (such as winks or messages) are not created, sent or received by a real person – they will mostly be automatically generated by our software;

c. Virtual Profiles only interact with Basic members and not with Full members (see section 6.1);

d. Virtual Profiles may be used to generate interactions that are sent to multiple members at the same time, or at different times;

e. it will not be obvious and apparent that any particular profile is a Virtual Profile, or that any interaction is from a Virtual Profile rather than a member; and

f. you cannot meet a person described in a Virtual Profile.

3.5 We recognise that some of our members only use our Services to interact with real people, and do not use our Services for the amusement and entertainment provided by Virtual Profiles. As a result, if you do not want to interact with Virtual Profiles you can opt out of this feature at any time.

3.6 You are expressly given the option not to interact with Virtual Profiles just before you agree to these Terms, and you can go to the Settings page at any time and select the option not to interact with Virtual Profiles.

4. Code of conduct

4.1 The Websites and Service are intended for use in a number of countries, including in the United States. You agree to comply with all applicable laws when using our Service and dealing with other members. This includes compliance with any and all applicable local, state, national and international laws and regulations, including, but not limited to, United States export control laws. By using the Service, you represent that you have not been designated by the United States government as a "Specially Designated National" or other person to whom the provisions of the Service are prohibited. Registration for, and use of the Service are void where prohibited. You are responsible for determining whether the use of the Service is legal for your jurisdiction.

4.2 You must not interfere with or damage our Service, including, without limitation, through the use of viruses, registration bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology, including methods that in any way reproduces or circumvents the navigational structure or presentation of the Service or its contents.

4.3 You must not enter any contact or identifying information in your profile. This includes, but is not limited to, your email address, phone number or physical address.

4.4 You must not disclose any details of any other members or disclose personal information of others through the HaveAnAffair messaging system or otherwise.

4.5 You must provide accurate information regarding your identity when you register to become a member and use the Service and you must not use the Service under false pretences. If you breach this provision, we may terminate your membership and your access to the Service for breach in accordance with section 9 of these Terms. Upon request by us, you agree to provide any further information to verify your identity and the accuracy of the personal information that you have provided. If you do not provide sufficient information for our verification purposes, we may terminate or suspend your membership or access to the Service in accordance with section 9.

4.6 Your account is for your personal use only. You may not authorise others to use your account, and you may not assign or otherwise transfer your account to any other person or entity. You acknowledge that we are not responsible for third party access to your account that results from theft or misappropriation of your user names or password.

5. User Content

5.1 By submitting any content (including without limitation, your photograph) to our Websites, you represent and warrant to us that the content, including your photograph, is posted by you and that you are the exclusive owner of the content, including your photograph, or are otherwise licensed to use and sub-license the content and use of your content by us will not infringe or violate the rights of any third party. By submitting any content (including without limitation your photograph) to our Websites, you automatically grant, and you represent and warrant that you have the right to grant, to us, and our licensees, affiliates and successors, a perpetual, worldwide, non-exclusive, royalty-free right and license to use, reproduce, display, and modify such content or incorporate into other works such content, and to grant and to authorize sub-licenses of the foregoing.

5.2 HaveAnAffair is not responsible for any profile or other content posted or entered on our Websites, except for Virtual Profiles as described in section 3.

5.3 You agree not to include any identifying information or illegal or unlawful information in your profile.

5.4 You are solely responsible for any content that you submit, post or transmit via our Service. You agree not to post or submit any content that:
a. is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
b. harasses or advocates harassment of another person;
c. exploits people in a sexual or violent manner;
d. contains excessive violence, or offensive subject matter;
e. solicits personal information from anyone under 18;
f. publicly posts information that poses or creates a privacy or security risk to any person;
g. constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libellous;
h. constitutes or promotes an illegal or unauthorized copy of another person's copyrighted work;
i. involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming" or unsolicited electronic commercial messages;
j. contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page);
k. furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
l. solicits passwords or personal identifying information for commercial or unlawful purposes from other members;
m. involves commercial activities and/or sales without prior written consent from us such as contests, sweepstakes, barter, advertising, or pyramid schemes;
n. includes a photograph or video of another person that you have posted without that person's consent; or
o. violates the privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contract rights or any other rights of any person.

5.3 The foregoing is a partial list of the kind of content that is illegal or prohibited on our Websites. We reserve the right to investigate and take appropriate legal action in our sole discretion against anyone who violates this Section 5 or any other provision of these Terms, including without limitation, removing the offending communication from our Service, terminating the violator's membership and access to the Service (in accordance with section 9) and contacting and disclosing information to the relevant authorities.

5.4 We have no obligation to post any content that you or anyone else submits. While we do not and cannot review every message or other material posted or sent by users of the Service, and are not responsible for any content of these messages or materials, we reserve the right, but are not obligated, to monitor, delete, move, or edit messages or materials, including without limitation advertisements, profiles, public postings and messages, that we, in our sole discretion, deem to violate these Terms or any applicable content guidelines, or to be otherwise unacceptable. You shall remain solely responsible for the content of profiles, public postings, messages and other materials you may upload to the Service or users of the Service. We cannot guarantee, and assume no responsibility for verifying, the accuracy of the information provided by other users of the Service.

6. Fees and refunds

6.1 Users of the Service become Basic members after completing the Registration Process. Basic members are allowed access to a minimal level of the Service's features and are not charged by us for the use of the features they can access. By purchasing one of our membership packages, Basic members can upgrade their memberships from Basic to Full status, which provides them access to additional features of the Service that are not available to Basic members.

6.2 The purchase of Full membership is non-refundable if you terminate this Agreement without cause or in the event that we terminate this Agreement or your access to the Service due to your breach of these Terms.

6.3 The fees specified on our Websites include all applicable taxes, including sales tax and consumption taxes such as goods and services tax (GST).

6.4 HaveAnAffair reserves the right to change the fees charged or introduce fees for any part of our Service at any time on reasonable written notification to you. You will be given a reasonable opportunity to access and consider the new fees, and to terminate this Agreement without penalty if you do not accept the fee change. If we introduce a new service, the fees for that service are effective at the launch of the service, unless otherwise stated.

6.5 All fees specified on our Websites are in New Zealand Dollars unless otherwise stated.

6.6 Free Credits. You expressly acknowledge that any promotion that provides credits or benefits (collectively, "Free Credits") may be terminated by us in our sole discretion at any time. If your membership is terminated for any reason, your Free Credits, if any, will expire and be forfeited. Free Credits have no cash value and may not be redeemed for cash, converted for other Services and/or transferred to third-parties.

7. Non-commercial use

Our Service is for personal use only and must not be used in connection with any commercial purposes. Organizations, companies, and/or businesses must not use our Service for any purpose. You must not use the HaveAnAffair messaging system for the discussion of competing services or any illegal or unlawful activity including, but not limited to prostitution and/solicitation, collecting user names and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to our Service. Use of our Service is with our permission, which may be revoked at any time, for any reason, in our sole discretion.

8. User name and password

8.1 You are responsible for keeping your password secret and secure. Without limiting the foregoing, you agree:

a. not to permit any other person to use your user name and password; and
b. not to disclose, or provide to any other person, your password.
c. immediately notify us of any unauthorized use of your username and password or any other breach of security and
d. ensure that you log off from your account at the end of each session.

You acknowledge and agree that you are responsible for all use of the Service under your user name and password.

9. Termination

9.1 We may terminate your membership, this Agreement and your access to our Service if:
a. you breach these Terms;
b. we consider (in our sole discretion) that you have violated or are likely to violate any applicable laws;
c. a serious complaint or multiple complaints are received about you from any person;
d. you impersonate another member or person; or
e. we, in our sole discretion, deem your behaviour whilst using the Service or in connection with your use of the Service, to be unacceptable.

9.2 You agree that any termination of your membership and access to our Service by us under these Terms pursuant to section 9.1, may be effected without prior notice, and acknowledge and agree that we may immediately deactivate or delete any of your accounts and all related information and files in such accounts and/or bar any further access to such files or our Service. Members who have registered under multiple aliases will have all of their aliases disabled. Further, you agree that, to the maximum extent permitted by law, we will not be liable to you or any third party for any costs or damages of any kind for or resulting from any such termination of your membership or access to our Service.

9.3 You may terminate your access to the Service at any time via our Websites or by sending us written or email notice of termination or other such method as required in your jurisdiction. In the event that you terminate this agreement, you will not be entitled to any refund of unused subscription fees, unless you are terminating pursuant to section 6.1 or due to a change to these Terms that you do not accept.

9.4 Complete Profile Removal. You may also select the "Complete Profile Removal" option, which is offered separately of basic termination. This feature will remove any public existence of the account on the Service including all messages sent and received (regular, collect), Winks, all photos you have uploaded, any site usage and credits purchase history and other personally identifiable information. You acknowledge and agree that we may retain information about your account for backup, archival or record-keeping purposes after the "Complete Profile Removal" option is selected. By using the Service, you hereby acknowledge that Members' communications may no longer be accessible should that Member have selected the Complete Profile Removal.

10. Links and Advertisements

The Websites may contain links and advertisements to third party websites, companies and products. These links and advertisements are provided solely as a convenience to you and not as an endorsement by our Websites of the contents, value, quality, safety, products, or accuracy on such third-party websites.

HaveAnAffair is not responsible for the content, value, quality, safety, products or accuracy of linked third-party websites, companies and products; and does not make any representations regarding the content, value, quality, safety, products, or accuracy of materials on such third party websites. If you decide to access, use, or purchase from linked third-party websites, companies or products, you do so at your own risk.

11. Disclaimer

You expressly understand and agree that:

a. Your use of our Websites and our Service is at your sole risk. HaveAnAffair expressly disclaims, to the maximum extent permitted by law, all representations, warranties or guarantees, express or implied, including, but not limited to, any representations, warranties or guarantees of merchantability, fitness for a particular purpose, and non-infringement.
If you purchase a membership to the Service in order to communicate with another particular member, you accept the risk that such member may not respond to your communications.

b. HaveAnAffair makes no representation, warranty or guarantee, to the maximum extent permitted by law, that i) our Service provided will be uninterrupted, timely, secure, or error free, ii) the information provided on our Websites is error-free or reliable, iii) the quality of any products or services obtained through the website will meet your requirements, or iv) members are who they say they are.

c. You do not enter into this Agreement in reliance on any representation, warranty, guarantee or other term, except as expressly set out in these Terms.

d. No advice or information that is obtained by you from HaveAnAffair or otherwise shall create any representation, warranty or guarantee not expressly stated in these Terms.

e. Responsibility for the content of advertisements appearing on our Websites (including hyperlinks to advertisers' own websites) rests solely with the advertisers. The placement of such advertisements on our Websites does not constitute HaveAnAffair's recommendation or endorsement of the advertised product or service. Each advertiser is solely responsible for any representation made in connection with its advertisement.

12. Limitation of Liability

12.1 You expressly understand and agree that, to the maximum extent permitted by law:

a. Neither party shall not be liable to the other under any circumstances for any indirect, incidental, special, consequential or exemplary loss or damages, including but not limited to damages for loss of profit, goodwill, use, data, or other intangible losses that result from the Service, or the inability to access the Service.

b. HaveAnAffair shall not be liable for the cost of procurement of substitute goods or services resulting from services provided by HaveAnAffair.

c. HaveAnAffair shall not be liable for the conduct or statements of members or third parties in relation to the Service.

12.2 None of the disclaimers, limitations or exclusions set out in these Terms will limit or exclude any form of liability to the extent such liability cannot be limited or excluded under applicable law, for example, under the Consumer Guarantees Act 1993 (New Zealand), the Fair Trading Act 1986 (New Zealand) or any other applicable consumer protection legislation.

13. Indemnity

You agree to indemnify fully HaveAnAffair from and against all claims, liability, loss, costs and expenses (including the full amount of legal costs) incurred or suffered by HaveAnAffair in respect of or in connection with:

a. information contained in your profile;

b. any material, including (without limitation) photos and messages, you post to or enter on our Websites or using the Service;

c. your communications with or behaviour towards other members;

d. any death, personal injury or damage to property you may cause;

e. your breach of these Terms or any applicable laws.

14. GENERAL PROVISIONS

14.1 System integrity
HaveAnAffair will use its reasonable endeavours to ensure the availability of our Website and Service, subject to any downtime required for maintenance. However, to the maximum extent permitted by law, HaveAnAffair takes no responsibility for any system unavailability, or for any loss that is incurred as a result of our Website or our Service being unavailable. Further, to the maximum extent permitted by law, HaveAnAffair assumes no responsibility for the corruption of any data or information held by HaveAnAffair.

14.2 Resolution of disputes
As HaveAnAffair is not a party to any dispute between you and another member, you agree:

a. not to involve, or attempt to involve, HaveAnAffair in any dispute or in the resolution of disputes that arise between you and another member as a result of our Service provided; and

b. not to use our Service or Website to engage in or attempt to resolve the dispute.

c. and acknowledge that neither of us will bring nor participate in any class action or other class proceeding in connection with any dispute with the other party. Further, neither you nor we agree to class arbitration or any arbitration where a person brings a dispute as a representative of the other person.

14.3 Force Majeure
HaveAnAffair has no liability for any lack of performance, unavailability or failure of our Service or our Website, or for any failure of HaveAnAffair to comply with these Terms where the same arises from any cause reasonably beyond the control of HaveAnAffair.

14.4 No Waiver
If we do not exercise or enforce any right available to us under these Terms, it does not constitute a waiver of those rights.

14.5 Partial Invalidity
If any provision of these Terms become or are held to be invalid, unenforceable or illegal for any reason and in any respect, that provision shall be severed from the remaining terms and conditions, which shall continue in full force and effect.

14.6 Governing Law
These Terms and your membership are governed by the laws of New Zealand. You submit to the non-exclusive jurisdiction of the Courts of New Zealand. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply.

14.7 Intellectual Property Rights
HaveAnAffair owns all intellectual property rights and other proprietary rights in our Website (including text, graphics, logos, icons and sound recordings but excluding member content) and the software and other material underlying and forming part of our Service and our Website. You may not without our prior written permission, in any form or by any means:

a. adapt, reproduce, copy, store, distribute, print, display, perform, publish or create derivative works from any part of our Website; or

b. commercialise, copy or on-sell any information or items obtained from any part of our Website.

14.8 Entire agreement
These Terms, our privacy policy and the code of ethics supersede all previous conditions, understandings, commitments, agreements and representations whatsoever whether oral or written and constitute the entire agreement between the parties relating to the subject matter of these Terms.

14.9 Privacy
Please refer to our privacy policy.

14.10 Emails and newsletters
HaveAnAffair will send you emails relating to your membership, changes to these Terms or the End User Licence Agreement for the Mobile Application, transactions and other activities on our Websites, and for promoting and marketing other HaveAnAffair products and services to you. HaveAnAffair may also send regular electronic newsletters to members. Newsletters will contain clear and obvious instructions for how you can unsubscribe from the mailing list.

14.11 Acknowledgement
You represent and warrant that you:

a. are not located in a country that is subject to a US Government embargo or that has been designated by the US Government as a 'terrorist supporting' country; and

b. are not listed on any US Government list of prohibited or restricted persons.

If you have any questions or concerns about our terms and conditions, the services of our Website, you may contact a representative of our company by calling us on (09) 365 1088, using the Contact Form or by regular mail: PO Box 5800, WELLESLEY ST, Auckland 1141, New Zealand.

Last Updated: 30th March 2016.

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