Affiliate Agreement
THIS AGREEMENT (the “Agreement”) provides the terms and conditions of the relationship between Mother Informed, LLC, d/b/a Mother Informed, a Florida limited liability company (the “Company,” “we,” “us,” or “our”) and You, (“Affiliate,” “you” or “your”) in order to participate in the Mother Informed Affiliate Program (the “Program” or “Affiliate Program”) to refer traffic to the Company's website.
WHEREAS, the Company is the sole owner and operator of the Internet site known as https://motherinformed.com and https://motherinformed.thinkific.com/ (the “Company Site”); and
WHEREAS, the Company has created a Program that enables affiliates to refer internet traffic to the Company Site from their website(s) or advertising networks of others in exchange for agreed consideration; and
WHEREAS, you desire to participate in the Program, as evidenced by your application, which application the Company may approve or disapprove, in its sole discretion (the “Affiliate Application”).
Important: By submitting an Affiliate Application to our Program, you warrant that you have read and reviewed this Agreement and that you accept and agree to be bound and abide by this Agreement. If you do not agree to be bound by this Agreement, please leave our Company Site immediately and do not apply to our Program. This Agreement specifically incorporates by reference our Terms of Use, Privacy Policy, and other legal notices which we may have on our Company Site, which you hereby accept and agree to abide by, as well. Please ensure you read and understand the entirety of this Agreement.
THEREFORE, in consideration of the mutual promises herein, the Parties agrees as follows:
1. DEFINITIONS.
Capitalized terms used and not otherwise defined in this Agreement shall have the following meanings:
a. “Affiliate Site” means the Affiliate’s website, mobile application, social media account(s) or subscription newsletters, as listed in the Affiliate Application.
b. “Completed Transaction” means the goods or services of the Company ordered by a Customer have been delivered, the return period has expired (if any), and thirty (30) days has elapsed since the goods or services were paid for in full.
c. “Customer” means any person or party who registers on the Company Site or purchases goods or services on the Company Site after connecting to the Company Site from the Affiliate referral.
d. “Links” means the banner, buttons, coding or other manner in which a Customer is referred by an Affiliate Site to the Company Site for the purpose of promoting the sale of goods or services on the Company Site. The Links are prepared to track Customers who are directed from the Affiliate Site to the Company Site and make a purchase which results in a Completed Transaction.
e. “Net Sale Price” means the total received in US Dollars (after conversion from non-US currency to US Dollars, if necessary) from the Customer less (i) any tax collected by the Company for or on behalf of any governmental or taxing authority (such as a sales tax or VAT), (ii) shipping and handling charges, (iii) restocking fees, (iv) credit card or other charges by attributable to the payment method used by the Customer, (v) currency conversion fees, or (vi) discounts, credit or allowances granted by the Company in its sole and absolute discretion.
2. ELIGIBILITY.
To be eligible to be an Affiliate, you must be at least eighteen (18) years of age; operate an Affiliate Site; be approved by Mother Informed through your Affiliate Application; and your Affiliate Site must not: (a) mislead others, contain false source-identifying information, contain or transmit any malicious or unsolicited software or engage in spamming or indiscriminate advertising; (b) contain or promote any content that is libelous, defamatory, obscene, abusive, pornographic, violent, indecent, threatening, harassing, deceptive, bigoted, hate-oriented, targeted at persons under the age of 18, violates or infringes other people's intellectual property, privacy, publicity, or other laws or legal rights of any third party, or offers any illegal good or service; (c) engage in the sale or promotion of pornography, tobacco, firearms, alcoholic beverages, gambling, or any illegal activity, or (d) have previously been terminated from the Affiliate Program. Additionally, your Affiliate Site must not promote or link to other websites that do any of the foregoing. You remain solely responsible for the content of your Affiliate Site and its compliance with all applicable laws and regulations.
By opting-in to this Agreement, you affirm that you are at least 18 years of age and are fully able and competent to enter into, abide by, and comply with the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement.
3. AFFILIATE SITE AND CONTENT.
You have sole and exclusive responsibility and liability for the development, operation, maintenance and all materials and content that appear on your Affiliate Site. You shall operate and maintain the Affiliate Site in accordance with all applicable laws, rules and regulations. We reserve the right to monitor the Affiliate Site to determine if you are in compliance with this Agreement.
After your acceptance in the Affiliate Program, you must ensure your account is set up.
We will provide you with a specific Link or Links which correspond to certain products we are offering for sale. The Link will be keyed to your identity and will send online users to the Company’s Site. You hereby agree to comply with the terms of this Agreement for the promotion of the Link. We may modify the specific Link or Links and will notify you if we do so. You agree to only use Links which are prior approved by us and to display the Link prominently on your Affiliate Site. The Company does not accept responsibility for the security of your account or content. You agree that your participation in the Affiliate Program is at your own risk.
The Federal Trade Commission requires that affiliate relationships, such as the relationship between you and the Company, be disclosed to consumers. You are required to post a conspicuous notice on your Affiliate Site regarding the Affiliate Program.
Your Affiliate Site must develop and maintain a privacy policy which shall accurately describe the information collection, storage, sharing, and use practices of your Affiliate Site, including but not limited to, the type of information collected, how the information is collected and used, and with whom the information is shared. Your Affiliate Site must have a prominent link to your privacy policy.
In consideration of the Fees, you agree to place one or more of the Links on the Affiliate Site in accordance with the terms and conditions of this Agreement. The Company is not responsible to pay any Fees in the event you do not use the Links provided to you by the Company without modification OR you do not properly install those Links, meaning the traffic will not be properly tracked to reflect that a Customer came from the Affiliate Site.
4. COMPENSATION FOR YOUR REFERRED TRAFFIC.
Subject to your proper installation and use of the Links, you will be compensated based upon the Net Sale Price from Completed Transactions. For each Completed Transaction, you will be paid fifteen (15%) Percent of the Net Sale Price (the “Fee”).
The Company is not responsible to pay any Fees in the event you do not use the Links provided by the Company without modification OR you do not properly install those Links, meaning the traffic will not be properly tracked to reflect that a Customer came from the Affiliate Site.
The Fee will be offset with respect to each Completed Transaction for which (a) the Company issues discounts, credits or allowances, or (b) there is a chargeback issued against the Company for any payment previously credited to the Company.
The Company reserves the right to refuse an attempted purchase by any person, in the Company's sole and absolute discretion. You shall have no claim to any Fee based on the Company's decision to not complete transaction with any person who accesses the Company Site through a Link on the Affiliate Site.
The Fee relative to a Completed Transaction shall be payable to you on or before the 15th of the following month. The Company pays out Affiliate Fees quarterly (March 15, June 15, September 15, and December 15). All Fees are payable in U.S. Dollars. The PayPal email address provided in your Affiliate Application will be used to send Fees via PayPal. Transaction fees will be deducted from the Fees. For any changes in your payment information or PayPal account, you must notify us immediately and we will endeavor to make the changes to your payout information as soon as possible.
You may log into your account on the Company Site to review reports related to your affiliation, such as payout reports and qualified click and/or purchase information. Please be advised however, that not all listed qualifying clicks and/or purchases have been fully reviewed for accuracy in the reports viewable by you in real-time and therefore may be subject to change prior to payout. We explicitly reserve the right to change payout information in our sole and exclusive discretion. If we do so, you will be notified.
Notwithstanding the foregoing, if and to the extent you are required to file or provide certain documentation for tax and other governmental purposes, payment of the Fees may be suspended pending completion of such documentation.
You must raise all Fee disputes within thirty (30) days of the date the applicable order is placed. If you dispute a Fee payment, or non-payment, in excess of thirty (30) days from the date on which the applicable order was placed, Mother Informed has no obligation to make any such Fee payment on such order.
5. ADVERTISEMENTS.
You may only use the banner advertisements, button links, product information, Mother Informed logos and text links to the Company Site and/or other advertisements promoting Mother Informed ("Advertisements") that are provided to you by Mother Informed. You may not modify the Advertisements without our prior written consent. You may not include price information in your descriptions unless provided to you and approved by us. Each link connecting users of your Affiliate Site to the Company Site shall not alter the look, feel, or functionality of the Company Site. Affiliates that create or generate their own creative materials in an effort to promote Mother Informed through the Affiliate Program must get our written approval of all such materials prior to publishing.
6. FULFILLMENT AND CUSTOMER INFORMATION.
The Company is solely responsible for processing and fulfillment of all orders of goods and services on the Company Site, which shall be governed by the terms and conditions established by the Company in its sole and absolute discretion. All information about such orders and the Customers are the sole and exclusive property of the Company.
We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the accuracy of prices or availability of products contained in the Advertisements. Accordingly, all of our rules, policies, and operating procedures concerning customer service, charges, and fees will apply to Customers. We may change our policies and operating procedures at any time. We have the right to accept or reject for any reason any order at the Company Site.
The Company may need to interrupt your access to the Affiliate Program to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that your access may be affected by unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for any damage or loss caused as a result of such downtime.
Additionally, you agree that the Company may collect, process and sell certain information about you.
7. LIMITED LICENSE RIGHTS.
You agree to place one or more of the Links on the Affiliate Site. Links may contain logos, trademarks, service marks (collectively, “Marks”). Pursuant to this Agreement, the Company grants you a limited, non-exclusive, non-transferable and revocable license to display the Links on the Affiliate Site, and nowhere else, subject to the terms and conditions of this Agreement.
You may not use the Links or the Marks for any other purpose absent the express written consent of the Company. You may not change, add to or delete from the Links or Marks. You may not use the Marks independently of the Links for any purpose without the Company’s express written consent; and you may not use or present the Links in any manner that suggests the endorsement of or by any other goods, services, persons or entities without the express written consent of the Company.
In addition, you agree to not (a) acquire or attempt to acquire, register or attempt to register, make a claim to or in any way use domain names, trademarks, service marks, keywords, handles, screen names or other forms of identification incorporating the Marks; or (b) use the Marks in a way that suggests that the source of the Affiliate Site is the Company.
You agree that the intellectual property owned by the Company includes all copyrights, trademarks, trade secrets, patents, and other intellectual property belonging to the Company. All intellectual property rights in and to the Marks, and any goodwill generated by your use of the Marks shall inure solely to the benefit of the Company. Upon termination of this Agreement, the rights granted in this section shall automatically terminate.
We may revoke this license at any time and if we find that you are using the Company intellectual property in any manner not contemplated by this Agreement, we reserve the right to terminate this Agreement.
You hereby provide us a non-exclusive license to use your name, trademarks and servicemarks, if applicable, and other business intellectual property to advertise our Affiliate Program.
8. Prohibited Activities.
You agree not to use the Affiliate Program or our Company for any unlawful purpose or any purpose prohibited under this clause. You agree not to use the Affiliate Program in any way that could damage our Company Site, websites, products, services, or the general business of the Company. You shall not undertake or engage in the following practices:
a. Use of Mother Informed Marks. Affiliates shall not: (1) make any representations, either express or implied, or create an appearance that a visitor to your Affiliate Site is visiting the Company Site (e.g., "framing" the Company Site); or (2) use any mark, name, or domain name of any type which is confusingly similar to "Mother Informed" or other Mother Informed trademarks.
b. Paid Search Marketing. Bidding on trademark keywords (e.g., Mother Informed, MotherInformed.com) or any variations, adaptations or misspellings is prohibited. This includes any trademarked keyword in combination with any other words or symbols. Bidding on "Mother Informed Coupon(s)" or any match type is prohibited. Direct linking and forced redirects are prohibited when performing search engine marketing. Affiliates must direct traffic to their own landing page from within paid search. Affiliate shall not solicit or target users who access the Company Site from your Affiliate Site with any promotions or offerings of goods or services that compete with the goods or services that we offer; provided that the foregoing limitations will not prohibit you from soliciting or targeting a group of all, or substantially all, users who access your Affiliate Site.
c. Linking to Mother Informed. Affiliates that use link shorteners must have their link shortening method approved by Mother Informed before use. Beyond link shortening, any type of link cloaking is prohibited. Affiliates that fail to provide accurate referring domains upon request from Mother Informed will be subject to commission reversal and removal from the Affiliate Program.
d. Coupon/Deal Marketing. Posting of non-affiliate order level coupons by Affiliates is prohibited without prior written consent from Mother Informed. Coupons and deals being promoted directly on a Mother Informed product page or brand guide are allowed. User generated content that contains unauthorized coupon codes is not allowed to appear on any page where an affiliate link to Mother Informed is present. Affiliates found promoting any unauthorized coupon codes will be subject to a reversal of ALL commissions for the given period.
e. Site Usage. Affiliates are prohibited from using Mother Informed property, including, but not limited to our Facebook wall, Instagram page, and Reviews, to direct traffic to websites, Facebook page names, Facebook advertising campaigns, Instagram page names, and Twitter accounts which the Affiliate owns or where the Affiliate has placed affiliate links back to Mother Informed. Affiliate shall not use or otherwise incorporate the word Mother Informed or variations thereof in the domain name(s) of your website(s).
f. Ordering. Using an affiliate account for the purpose of placing orders for your personal use is prohibited.
g. Spam and Electronic Messages. Affiliate shall not send commercial electronic mail messages as defined in the new Federal spam law, the CAN-SPAM Act of 2003, and similar county-specific acts (collectively, the "Acts"), with respect to our Affiliate Program. For clarification, this does not prohibit transactional or relationship messages as defined in the Acts. In addition, Affiliate may not send any e-mail that refers to Mother Informed, advertises any Mother Informed product, or links to the Company Site unless the content referring to Mother Informed has been provided to you by Mother Informed or has been approved. Except as expressly authorized by Mother Informed, any and all electronic messages initiated or sent by Affiliate or on Affiliate's behalf must identify Affiliate as the sender and may not suggest, imply, mislead, or be likely to mislead a recipient into believing that Mother Informed is the sender or sponsor of, or has induced Affiliate to send, such electronic messages. Affiliate shall not use a return address, subject heading, header information, or message contents that misleads or confuses or is likely to mislead or confuse a recipient that Mother Informed is the sender.
h. Public Announcement. You may not mention Mother Informed in a press release or other public statement (other than the Advertisements) unless you have received prior written approval from Mother Informed.
i. Reverse Engineering. You shall not reverse engineer, or attempt to reverse engineer or disassemble any code or software from or on any of our websites or services; violate the security of any of our websites or services through any unauthorized access, circumvention of encryption or other security tools, data mining or interference to any host, user or network.
You further agree not to use the Affiliate Program to: (i) harass, abuse, or threaten others or otherwise violate any person’s legal rights; (ii) violate any intellectual property rights of the Company or any third party; (iii) To upload or otherwise disseminate any computer viruses or other software that may damage the property of another; (iv) To perpetrate any fraud; (v) engage in or create any unlawful gambling, sweepstakes, or pyramid scheme; (vi) publish or distribute any obscene or defamatory material; (vii) publish or distribute any material that incites violence, hate, or discrimination towards any group; or (viii) unlawfully gather information about others.
9. REPRESENTATIONS AND WARRANTIES.
You hereby represent and warrant to us that: (i) you have duly and validly assented to this Agreement and it constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms; (ii) you are the lawful owner of your Affiliate Site and your Affiliate Site complies with your obligations described in Section 2 above, including, but not limited to, your obligations regarding eligibility, advertising, privacy, and e-mail; (iii) the assent to the terms of this Agreement, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (a) any provision of law, rule, or regulation to which you are subject, (b) any order, judgment, or decree applicable to you or binding upon your assets or properties, (c) any provision of your by-laws or certificate of incorporation if applicable, or (d) any agreement or other instrument applicable to you or binding upon your assets or properties; (iv) no consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby; and (v) there is no pending or, to the best of your knowledge, material threatened claim, action, or proceeding against you, or any subsidiary or sub-Affiliate of yours, with respect to the execution, delivery or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
You represent and warrant that you will not engage in and/or facilitate spamming, indiscriminate advertising, or unsolicited commercial email or otherwise fail to comply with any laws and/or regulations that govern email marketing and/or communications. You represent and warrant that you will not engage in pop-up or pop-under advertising using any means involving third party properties and/or services (software). Pop up/unders are acceptable on a first party basis only when triggered by your site content /site visit or by downloadable software applications for which you are the owner/operator.
10. AFFILIATE PROGRAM ADVERTISING AND PROMOTIONAL GUIDELINES
The Advertisements furnished by Mother Informed to you, may only be used pursuant to the guidelines set forth in this document. Any other use is strictly prohibited. By participating in the Program, you agree to abide by the terms of these Advertising and Promotional Guidelines, including, but not limited to the following obligations:
a. The Advertisements may not be used in any manner that might imply that any goods, services, websites, publications, or other materials that do not originate from Mother Informed are sponsored, endorsed, licensed by, or affiliated with Mother Informed. The Advertisements must not be incorporated or used in any manner as part of, or in close proximity to, another company's name, domain name, product or service name, logo, trade dress, design, slogan, or other trademarks. You must display your own logo(s), business name, product names, or other branding in a primary and more prominent position than Mother Informed Advertisements.
b. The Advertisements may be displayed on your Affiliate Site, and only as a hotlink to the Company Site.
c. The Advertisements may not: mislead others; use promotional means that contain objectionable content, including, but not limited to, content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, and/or promoting illegal goods, services, or activities; engage in and/or facilitate spamming, indiscriminate advertising, or unsolicited commercial email; and/or infringe on any third party's proprietary rights.
d. The Advertisements may not be imitated in any manner or used in a manner that would disparage Mother Informed or its products or services.
e. You may use only approved Mother Informed Advertisements or Advertisements provided to you by Mother Informed, which may not be modified in any way without the prior written consent of Mother Informed.
f. Mother Informed does not permit Affiliates to do paid searches on its behalf; does not allow Affiliates to include any Mother Informed trademarks or service marks in paid search campaigns; and does not permit affiliates to purchase any Mother Informed trademark or service mark as a keyword.
11. DISCLAIMERS.
You agree that your use of the Affiliate Program is at your sole and exclusive risk and that any services provided by us are on an “As Is” basis. The Company makes no representations or warranties as to the Company Site. To the maximum extent of the law, the Company disclaims all representations, warranties and conditions, express and implied, including the warranties of merchantability, fitness for particular purpose, title and non-infringement. The Company Site is provided “as is.”
The Company makes no warranties that the Affiliate Program will meet your needs or that it will be uninterrupted, error-free, or secure. The Company also makes no warranties as to the reliability or accuracy of any information. You agree that any damage that may occur to you, through your computer system, or as a result of loss of your data from your use of the Affiliate Program is your sole responsibility and that the Company is not liable for any such damage or loss.
12. LIMITATION OF LIABILITY.
IN NO EVENT WILL THE COMPANY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES INCLUDING BUT NOT LIMITED TO THE LOSS OF PROFITS OR BUSINESS OPPORTUNITY, EVEN IF WE HAD BEEN ADVISED OF SUCH POSSIBILITY.
IN NO EVENT SHALL THE LIABILITY OF THE COMPANY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED ONE HUNDRED AND 00/100 US DOLLARS ($100.00) THIS LIMITATION APPLIES TO ANY LIABILITY ARISING FROM ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES.
For purposes of this section, any reference to “the Company” shall include the Company's affiliates, officers, employees, principals, agents and contractors.
13. TERM AND TERMINATION.
This Agreement shall commence upon you checking the “Submit” box on the Affiliate Application and may be terminated by either Party upon written notice to the other. If we terminate this Agreement due to breach by you, no further Fees shall be paid to you and we may seek such other relief, equitable and legal, as may be available. If you terminate, the Fees due and owing to you shall be paid as provided herein. Regardless who terminates, upon termination, any and all rights and licenses granted by us to you shall immediately cease and you shall immediately stop using and remove the Links and the Marks from the Affiliate Site.
You may only earn payouts as long as you are an Affiliate in good standing during the term. At the termination of this Agreement, any provisions that would be expected to survive termination by their nature shall remain in full force and effect.
14. RELATIONSHIP.
You are an independent contractor with respect to the Company. Nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between you and the Company. You shall not, in any manner or respect, represent, suggest or convey the impression that you are an employee or agent of the Company, or that the Company has endorsed you and/or the Affiliate site or that you represent the Company in any manner or capacity. You have no authority to and shall not enter into any agreements or obligations purporting to be binding upon the Company.
As an independent contractor, you are solely and exclusively responsible (i) for all taxes payable with respect to income earned through the Company Site; (ii) to obtain any liability, health, workers’ compensation, disability, unemployment, or other insurance needed, desired, or required by law, and that you are not covered by or eligible for any insurance from the Company; and (iii) for ensuring that you comply with any Licensing Authority’s rules or practices.
15. CONFIDENTIALITY.
You promise and agree to hold Confidential Information in strict confidence and in trust for the sole benefit of the Company, both during the term of this Agreement and at all times thereafter, and shall not use such Confidential Information for any purpose, whether or not for consideration, business or personal, other than as may be reasonably necessary for the performance of its duties pursuant to this Agreement, without the Company's prior written consent. You shall not disclose any Confidential Information to any person or entity, other than to such of its employees or consultants as may be reasonably necessary for purposes of performing its duties hereunder and have executed agreements of confidentiality no less protective than this Agreement, without the Company's prior written consent. You shall use not less than the same degree of care it uses to protect its own Confidential Information, but in any event not less than a reasonable degree of care. For purposes of clarity, your obligations hereunder include taking all actions necessary to ensure that your affiliates, employees, contractors and agents and any other person or party who obtains Confidential Information from or as a result of provider abide by the terms of this section in their entirety.
Confidential Information does not include information that (a) is or becomes publicly known through lawful means; (b) was rightfully in provider’s possession or part of your general knowledge prior to the effective date of this Agreement; or (c) is disclosed to you without confidential restriction by a third party who rightfully possesses the information (without confidential restriction) and did not learn of it, directly or indirectly, from the Company.
If you are required to disclose Confidential Information by virtue of a lawful court order, subpoena or similar legal request, you will promptly notify the Company in writing of such requirement and cooperate so that the Company may seek an appropriate protective order. You will not use, copy, publish, distribute or summarize any Confidential Information except as necessary to carry out the activities contemplated herein.
16. WAIVER.
You expressly and unconditionally waive any and all claims against the Company, regardless the bases upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances or conditions:
a. the Company Site is partially or totally inoperative or inaccessible;
b. there are bugs, errors or inaccuracies in the Company Site;
c. a suspension, termination or other action was taken with respect to your account by the Company even if such suspension, termination or other action resulted in a loss of profits to you;
d. any claim relating to a change in this Agreement by the Company;
e. withholdings, deductions or offset in connection with payment of Fees due to applicable tax or currency control restrictions.
For purposes of this section, any reference to “the Company” shall include the Company's affiliates, officers, employees, principals, agents and contractors.
No waiver by the Company of any breach by you of any condition or provision of this Agreement shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by the Company in exercising any right, power, or privilege under this Agreement operate as a waiver to preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege.
You are solely responsible for the security of your Account, and the username and password associated with your Account. You hereby waive and dismiss any claims against us and agree to indemnify, defend and hold us harmless against any unauthorized use of or access to your Account by an unauthorized person using your username and password.
You agree that any dispute you raise shall be as an individual only, not as a class or with or behalf of anyone else. You expressly waive any right to bring a class or collective action, or be a member in a class or collective proceeding. The Company may take any and all actions necessary to dismiss a class or collective actions or claims thereunder.
17. INDEMNIFICATION.
The Company and its affiliates, owners, principals, officers, employees and agents shall be referred to, collectively, as “the Company Indemnitees.”
You agree to and shall indemnify, defend (with legal counsel reasonably acceptable to the Company Indemnitees) and hold the Company Indemnitees harmless from and against any and all actions, suits, claims, demands, debts, liabilities, obligations, losses, damages, costs, expenses, penalties or injury (including reasonable attorneys’ fees and costs of any suit related thereto) suffered or incurred by any of them arising from:
a. any misrepresentation by, or breach of any covenant or warranty of yours contained in this Agreement or any exhibit, certificate, or other agreement or instrument furnished or to be furnished by you hereunder;
b. any non-fulfillment of any agreement by you under this Agreement;
c. any suit, action, proceeding, claim or investigation against the Company Indemnitees which arises from or which is based upon or pertaining to your acts or omissions or conduct of business;
d. failure to comply with the terms of this Agreement by you or your employees and agents;
e. failure to comply with applicable law by you or your employees and agents;
f. defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegations thereof to the extent caused by you or your employees and agents:
g. failure to pay appropriate taxes for yourself or your employees and agents (including withholding taxes, if any); or
h. the Affiliate Site contains or promotes materials that infringe or violate the copyright or other intellectual property rights of any third-parties.
If any lawsuit, enforcement action or any attempt to collect on an alleged liability is filed against the Company Indemnitees, written notice thereof shall be given to you within ten (10) business days after receipt of notice or other date by which action must be taken; provided, however, that the failure of the Company Indemnitees to give timely notice shall not affect its rights to indemnification hereunder except to the extent that you demonstrate damage caused by such failure. After such notice, you shall be entitled, if you so elect, to take control of the defense and investigation of such lawsuit or action and to employ and engage attorneys of its own choice to handle and defend the same, at your reasonable cost and expense. The Company Indemnitees shall cooperate in all reasonable respects, at your cost and expense, with you and such attorneys in the investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. You shall not, without the prior written consent of the Company Indemnitees, effect any settlement of any proceeding in respect of which the Company Indemnitees is/are a party and indemnity has been sought hereunder unless such settlement of a claim, investigation, suit, or other proceeding only involves a remedy for the payment of money by you and includes an unconditional release of the Company Indemnitees from all liability on claims that are the subject matter of such proceeding.
If you shall have an indemnification, defense and hold harmless obligation, as above provided, and shall fail to assume such obligation, then the Company Indemnitees shall have the right, but not the obligation, to assume and maintain such defense (including reasonable counsel fees and costs of any suit related thereto) and to make any settlement or pay any judgment or verdict as the Company Indemnitees, in its/their sole and absolute discretion, deem necessary or appropriate; such costs of settlement, payment, expense and costs, including reasonable attorneys’ fees, to be reimbursed by you upon demand by the Company Indemnitees.
The Company may deduct or offset or withhold your Fees if the Company, in its sole and absolute discretion, determines that you have committed some act that is likely to result in disputes, chargebacks or damages to the Company to which the Company would be entitled to indemnification by you.
18. ASSIGNMENT; SUCCESSION.
You may not assign this Agreement. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, this Agreement is binding upon and will inure to the benefit of the successors, heirs and permitted assigns of the Parties.
This Agreement shall be binding upon the Parties and their successors, permitted assigns, heirs, affiliates, directors, shareholders, officers, employees and/or agents.
19. CHOICE OF LAW.
This Agreement shall be governed by the laws of the State of Florida, without regard to its conflict of laws rules or principles. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the state and federal courts of the following county: Sarasota County, Florida. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non conveniens or similar doctrine.
20. WAIVER OF JURY TRIAL.
Each of the Parties knowingly, voluntarily and irrevocably waives, to the fullest extent permitted by law, all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the actions of any Party in negotiation, administration, performance or enforcement of this Agreement.
21. REMEDIES.
All rights, remedies, undertakings, obligations and agreements contained in this Agreement or available at law, in equity or otherwise, shall be cumulative, and none shall be a limitation of any other remedy, right, undertaking, obligation or agreement.
22. FORCE MAJEURE.
The Company shall not be responsible or liable for any delay or failure to fulfill any provision of this Agreement if such a delay or failure results directly or indirectly from any act of God, war, riot, insurrection, embargoes, acts of civil or military authorities, fires, floods, explosions, accidents, pandemics or any other cause beyond the reasonable control of the Company.
23. INTERPRETATION.
You acknowledge and agree that you had sufficient time and opportunity to have this Agreement reviewed by your legal counsel. If this Agreement is ever construed, whether by a court or arbitrator, such court or arbitrator will not construe this Agreement, or any provision hereof, against any party as drafter.
This Agreement is written in English and, notwithstanding the translation or translatability into other languages, the English language version of this Agreement shall be controlling.
The headings used herein are for convenience only and shall not be deemed to define, limit or construe the contents of any provision of this Agreement. The meanings given to terms defined herein will be equally applicable to both the singular and plural forms of such terms. Whenever the context may require, any pronoun includes the corresponding masculine, feminine and neuter forms.
24. COUNTERPARTS.
This Agreement may be executed in counterparts, via any means (including website, facsimile and e-mail), all of which shall be effective, but when taken together shall comprise one agreement.
25. SEVERABILITY.
If any provision of this Agreement is unenforceable under any applicable law or is held invalid, such holding shall not affect any other provision hereof, and the defective provision shall, if applicable law permits, be modified and interpreted in a manner that it is enforceable. Otherwise, the offending term or provision shall be omitted and not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
26. MODIFICATION AND AMENDMENTS.
The Company may, from time to time and at any time, modify this Agreement. You agree that the Company has the right to modify this Agreement or revise anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon posting on the Company Site and that modifications or variations will replace any prior version of this Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement. If we update or replace the terms of this Agreement, we will let you know via electronic means, which may include an email. If you don’t agree to the update or replacement, you can choose to terminate this Agreement as described herein.
You agree to routinely monitor this Agreement and refer to the Effective Date posted at the top of this Agreement to note modifications or variations. You further agree to clear your cache when doing so to avoid accessing a prior version of this Agreement.
Notwithstanding any modification, the rights and obligations of the Parties relating to the consideration to be received hereunder and any fees to be charged as between Parties as to any occurrence prior to the effective date of such modification shall remain unchanged by any such modification.
27. NOTICES.
Any notices or other communications required or permitted hereunder shall be sufficiently given if in writing and delivered in Person or sent by registered or certified mail (return receipt requested) or nationally recognized overnight delivery service, postage pre-paid, or delivered via telecopier or facsimile transmission addressed as follows, or to such other address as such Party may notify to the other Parties in writing:
To the Company:
Brooke Hartman
1919 Baywood Dr, Unit A
Sarasota, FL 34231
Email: [email protected]
Notices, demands or requests which we or you are required or desire to give the other hereunder shall be deemed to have been properly given for all purposes if (a) hand-delivered to the Party's notice address, (b) delivered to a nationally recognized overnight courier such as FedEx, UPS or DHL to its addressee at such Party's notice address, or (c) delivered via telecopier or facsimile transmission to the Party's facsimile number. Each such notice, demand or request shall be deemed to have been received upon the earlier of (i) actual receipt or refusal by the addressee if hand-delivered in accordance with clause (a) or (b) above, or (ii) the date and time of transmission if sent during business hours in accordance with clause (c) above. The Parties shall notify the other of any change in address, which notification must be at least two business days in advance of it being effective. Notices may be given on behalf of any Party by such Party's legal counsel.
For a notice to be valid and effective, an email copy of such shall notice shall be sent concurrently to the addressee’s email. An email notice alone shall be sufficient upon acknowledgment of receipt by the recipient or the recipient’s reply to such email, direct or indirect.
28. ENTIRE AGREEMENT.
This Agreement sets forth the entire agreement and understanding between you and the Company relating to the subject matter hereof and thereof and supersedes any prior or contemporaneous discussions, agreements, representations, warranties and other communications between you and the Company, written or oral, to the extent they relate in any way to the subject matter hereof.
29. ELECTRONIC COMMUNICATIONS PERMITTED.
Electronic communications are permitted under this Agreement, including email or fax. For any questions or concerns, please email us at the following address: [email protected].