DIVINE LIVING, INC.
Last Updated: April, 2019
The following AFFILIATE AGREEMENT (hereinafter, the “Agreement”) constitutes a binding legal contract between YOU (hereinafter, “Affiliate”, “You”, or “Your”) and DIVINE LIVING, INC. (hereinafter, “Divine Living” or “Company”) for Your participation on Company’s “Affiliate Program” (as defined below).
For the purposes of this Agreement, “Company” includes all business enterprises that are owned by Company, Gina “DeVee” Ratliffe, and those businesses that are conducted under the name of “The Academy,” “The Academy 2,” “Divine Living, Inc.” “Faithworks,” “Gina DeVee,” and their related websites, or any derivation thereof, which are intended third-party beneficiaries of this Agreement. Company and Affiliate shall hereinafter each be referred to as a “Party” and collectively as the “Parties.”
Carefully read the terms of this Agreement because they affect your legal righs.
You are invited to consult with counsel prior to accepting the terms of this Agreement. Before You participate in, receive, access, and/or use Company’s website, the Affiliate Program (as defined below), and/or the services provided by Company, You must read and accept all of the terms and conditions in, and linked to, this Agreement. Please save a copy of this Agreement for future reference, and please frequently check if any updated versions are available.
If you do not agree to this Agreement, any future amendment, or any portion thereof, DO NOT USE OR ACCESS Company’s website and/or services, and immediately disengage from the website and Your participation therein. Accordingly, by participating in, receiving, accessing, and/or using the services of Company, including without limitation by participating in the Affiliate Program (as defined below), You hereby agree to abide by the following terms and conditions, including those available by hyperlink:
- MODIFICATION OF AGREEMENT. Company retains the right to amend the terms of this Agreement, in Company’s sole and absolute discretion, without prior consent of or notice to You. Upon any such Amendment, Company may provide notice of such changes by either sending a notification, posting a notice on Company’s website, or by updating the “Last Updated” date above.
Amendments may include without limitation changes in the referral commission structure, payment procedures, and the Affiliate Program rules. If You do not agree to the amended terms, or any portion thereof, for any reason You must immediately stop using Company’s services and shall immediately stop participating in the Affiliate Program (as defined below).
Additionally, when using particular services owned and/or operated by Company, You are subject to any posted guidelines or rules applicable to such services. You are encouraged to frequently read this Agreement, or an updated version of this Agreement if available, to ensure Your understanding of the current terms and conditions that apply to Your use hereunder.
By continuing to participate in, receive, access, and/or use the services of Company, including without limitation the Affiliate Program (as defined below),You hereby agree to be bound by and subject to the terms and obligations of any such amendment.
- AFFILIATE PROGRAM. The term, “Affiliate Program,” as used herein shall refer to Company’s service through which one or more designated “affiliates” may send and direct her/his/its contacts and clients to Company and Company’s products, programs, trainings, and services in consideration of Company providing that “affiliate” with certain commission fee(s) as prescribed herein.
- ELIGIBILITY. The Affiliate Program, Company’s website(s), and Company’s services are only available to persons who can form a legal binding contract, and are not available for use by minors (persons under the age of 18) without parental consent. By participating in, receiving, accessing, and/or using the Affiliate Program, Company’s website(s), or Company’s services You hereby certify that You are of legal age, or possess legal parental or guardian consent, and are not restricted to enter into this Agreement or to use or access the Affiliate Program, the Account (as defined below), or the Affiliate Code (as defined below), by any United States or International law, or otherwise by any other law, agreement, or regulation In addition, You affirm that You have not been previously suspended or removed from the Affiliate Program, Company’s website(s), or Company’s services, and do not have nor will you have more than one Account (as defined below), unless Company agrees otherwise in writing.
Company reserves the right, in its sole and absolute discretion, to refuse to offer the Affiliate Program, Company’s website(s), or Company’s services to any person or entity. Company also reserves the right to, without notice and in its sole and absolute discretion, terminate Your right to use or access the Affiliate Program, the Account (as defined below), or the Affiliate Code (as defined below), or any portion of thereof, and block and/or prevent Your future access thereto or use thereof.
You also agree to: (a) provide true, accurate, current and complete information about Yourself as prompted by Company for registration in or of the Affiliate Program, the Account (as defined below), or the Affiliate Code (as defined below) (hereinafter, the “Registration Data“); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Company is concerned about the safety and privacy of its students and clientele. Therefore, if You provide any information that is untrue, inaccurate, not current, or incomplete, or if Company has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Company has the right to suspend or terminate Your Account or Affiliate Code, and to refuse any and all current or future participation in the Affiliate Program, Company’s services and programs, or any portion thereof.
- RESERVATION OF RIGHTS. Company reserves the right to suspend, discontinue or terminate any Affiliate’s use of or participation in the Affiliate Program and Company’s website and services and/or Your Affiliate Code or Account, at any time. Such suspension or termination may be implemented immediately without notice. Some examples include but are not limited to a breach of this Agreement, member misconduct, if Company cannot verify or authenticate any or some of the information You provide, or any other reason that Company assumes.
- RELATIONSHIP OF PARTIES. Affiliate shall provide services for Company as an independent contractor. As such, this Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate, nor any expectation thereof. Furthermore, Affiliate shall not have any authority to bind Company into any agreement, Affiliate shall not hold himself/herself/itself out to have any authority to bind Company, and Affiliate not be considered to be an agent of Company in any respect.
USE OF AFFILIATE PROGRAM.
- Affiliate Code and Account. Upon completing registration for the Affiliate Program, You will be provided with a unique tracking link that will allow You to follow and/or track Your leads and sales for the entirety of a given promotion (hereinafter, Your “Affiliate Code“). Furthermore, all statistics and sales (collectively the “Sales“) are managed and tracked by Infusionsoft. As such, You will also obtain and/or create a username and password so You can track Sales and to help You better manage Your campaign’s effectiveness (hereinafter, Your “Account“).
- Use of Affiliate Code. In order to drive traffic to Company’s products or services You may provide Your Affiliate Code to Your contacts, post the Affiliate Code on Your website(s), include the Affiliate Code in Your emails, and/or post the Affiliate Code on Your social media accounts and websites (in compliance with each sites terms and conditions). When Your customers, clients and leads click on Your specified Affiliate Code each individual that follows the link will then be “tagged” with Your Affiliate Code. For each purchase of a commissionable product or service by people “tagged” with Your Affiliate Code, You will receive a specified commission for the specific program that You are promoting (hereinafter, each, an “Eligible Sale“). Consequently, if an invitee does not note or “tag” Your Affiliate Code in the sale of a given program, then You will not be entitled to receive, and You will not expect to receive, a commission for that Sale.
- Warranty of Account Information. By creating an Account, or by otherwise signing up for the Affiliate Program or any of Company’s services, and/or by providing Company with Your information, You hereby certify that all information is completely accurate to the best of Your knowledge. You certify that Your name, e-mail address, address, and any further information provided by You are accurate. You further certify that You are signing up with Company for legitimate purposes and not to commit fraud. If Company discovers any fraud being perpetuated through the Affiliate Program or its systems, Company reserves the right to refer cases to the United States Department of Justice and other governing authorities.
- Duty to Maintain Account. You are responsible for maintaining the information and confidentiality of Your Account, and are fully responsible for all activities that occur thereunder. You agree to: (a) immediately notify Company of any unauthorized use of Your Account or any other breach of security; and, (b) ensure that You exit from Your Account at the end of each session. Company is not responsible for any breaches of security or damages resulting from the Your failure to protect Account information.
- COMMISSION TERMS.
- Enrollment Period. Each program of Company will be open for enrollment for a specified period of time. The “Enrollment Period“, as used herein, shall mean the duration of time in which enrollees may acquire a specific product or program of Company, and before the “cart” closes on Company’s website. The Enrollment Period may be posted on Company’s website or in any of its materials, and is subject to change, at any time, in the sole and absolute discretion of Company.
- Commissions. For each Eligible Sale made during the Enrollment Period Company shall pay Affiliate a specified commission for the program that You are promoting (hereinafter, the “Commission“). The amount of the Commission shall be determined as a percentage of Eligible Sales, however, Commissions paid to or due Affiliate, if any, vary from program to program. The Commission structure for each program shall be made available to You by Company prior to Your participation therein. Notwithstanding the foregoing, You hereby agree to receive only the Commission offered by Company to all affiliates, in Company’s sole and absolute discretion. Furthermore, the Commission structure shall be subject to change by Company at any time, in Company’s sole and absolute discretion, and any change in the Commission may be posted on Company’s website, given by notification from Company, or included in updated program materials, or an updated version of this Agreement.
- Sales Records. Company shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate will have access to his/her/its own records, which are the same records, by logging into Infusionsoft and looking at the “Referral Partner Ledger.” Affiliate shall bring any discrepancy between the amount of Commission owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods, to Company’s attention within fourteen (14) calendar days of discovering such discrepancy, or else Affiliate shall forfeit his/her/its rights to receive the corrected amount.
- Time of Payment. In order to provide Company with sufficient time to account for any chargebacks or returns, Company shall retain any Commissions for at least a period of sixty (60) calendar days after the Enrollment Period for the relevant program closes. As such, Payments to Affiliate shall be made at least sixty (60) calendar days after the Enrollment Period for the relevant program closes, or on the fifteenth (15th) day of a given month, whichever is later (hereinafter, “Payment Date“). For the avoidance of doubt, if the sixtieth (60th) day after an Enrollment Period closes falls on the sixteenth (16th) day of the relevant month, then the Payment Date shall be, and Affiliate shall be entitled to receive payment on, the fifteenth (15th) day of the following month. If Your referral makes a one-time lump-sum payment, then You shall receive a single commission payment for the Sale on the Payment Date. If, however, Your referral signs up for a payment-plan, thereby making multiple payments, then You will be paid only after Company has received such payment from Your referral, with such commission being paid to You after the Payment Date on a quarterly basis.
- Overlapping Sales. All “affiliate leads” are tracked by cookies. You may view You Affiliate Code tracking statistics by signing into Your personal affiliate portal in Infusionsoft, at any time. If multiple “affiliates” refer the same customer to Company, and/or if multiple “affiliate codes” are “tagged” in a given Sale, then the last cookie tracked on the Sale shall be entitled to receive such commission.
- Breach by Affiliate. If Affiliate materially breaches this Agreement or any provision hereto, in the sole and absolute discretion of Company, and Company terminates this Agreement within thirty (30) days of such breach, then any accrued and unpaid Commission due Affiliate under this Agreement shall be forever forfeited, and Company shall not be obligated to pay and Affiliate shall not be entitled to receive such Commission.
- TAXES. Affiliate shall be independently responsible for all applicable state and federal taxes resulting from any commission received under the terms of this Agreement. Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate. Affiliate is solely responsible for keeping up with current tax laws, procedures and paperwork and reporting accurately and fully to the IRS at the end of each fiscal year. Company may require You to provide, and You hereby agree to complete, sign, and submit to Company, any tax documentation which may be required, including without limitation IRS Form 1099, or any derivation thereof.
- PROMOTIONAL MATERIALS. Company may make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on Affiliate’s website or in any Affiliate email or on Affiliate’s social media account(s) (hereinafter, the “Promotional Materials“). The manner of use and display of the Promotional Materials and any images therein are subject to the terms and conditions of this Agreement.
In any use of the Promotional Materials, Affiliate shall include a link to Company’s website, as may be specified by Company from time to time. Any email, social media, text-based, or promotional swipe copy of Affiliate can be altered or personalized, as this yields the best results; provided, however, that the Promotional Materials, and any images therein, may NOT be altered in any way, and any text that is altered must comply with all terms and conditions listed in the paragraph below, Use of Promotional Materials.
- USE OF PROMOTIONAL MATERIALS. Affiliate’s use and display of the Promotional Materials on Affiliate’s website, or as otherwise allowed and provided herein, must comply with the following terms, conditions and specifications:
- Affiliate may not use any graphic materials to promote Company’s website, products or services other than the Promotional Materials.
- Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website, option pages, trainings, videos, webinars, programs, products, and for providing hyperlinks to Company’s website.
- Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company with the exception of promotional email swipe copy. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration of modification.
- The Promotional Materials shall be used to link only to Company’s website, to the specific page and address as specified by Company, and shall not link to any other website or page.
- INTELLECTUAL PROPERTY.
- Company Content. The Affiliate Program, Company’s websites and services, the Promotional Materials, and all content contained therein, derived therefrom, or pertinent thereto, such as program and course materials, forms, advertisements, email content, text, graphics, logos, codes, illustrations, designs, icons, images, photographs, video clips, written and other materials (hereinafter, “Company Content“), as well as their selection and arrangement, are the property of Company and are protected by United States and international copyright and patent laws. No license to use any of the foregoing is expressed or implied. Parties infringing the forgoing shall be subject to prosecution under the intellectual property laws of the United States.
- Ownership. Company retains all right, title, ownership, and interest in and to Company Content, and in any copyright, trademark, or other intellectual property therein. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in or to Company Content, or in the underlying intellectual property therein.
- Provision of Company Content to Affiliate. In the event that any Company Content is provided to You, Company grants You a limited personal, non-transferable, revocable, and non-exclusive right and license to use Company Content as provided herein. Affiliate shall not be authorized to (and shall not allow any third party to) copy, reproduce, republish, distribute, or otherwise disseminate, sell, assign, sublicense, grant a security interest in, or participate in any sale, rent, lease, loan, assignment, distribution, license, sublicense, or exploitation of, in whole or in part, or otherwise transfer any right in or to Company Content, except with the prior written consent of Company and as expressly stated in this Agreement. All intellectual property of Company, including that in Company Content, shall remain the sole and exclusive property of Company. No license to sell or distribute Company intellectual property or Company Content is granted or implied, except as expressly provided herein, and are otherwise specifically prohibited.
AFFILIATE’S REPRESENTATIONS AND WARRANTIES. Affiliate represents and warrants the following:
- Affiliate has the full legal authority to enter into this Agreement and to be bound to the promises, agreements and other duties set forth herein.
- Affiliate’s website(s) does(do) not contain any materials that are:
- Sexually explicit, obscene, or pornographic;
- Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, source of income, or otherwise);
- Graphically violent, including any violent video game images; or
- Solicitous of any unlawful behavior.
- Affiliate has obtained any necessary clearances, licenses, or other permissions for any intellectual property used on Affiliate’s website(s). Nothing on or contained in Affiliate’s website(s) infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
- Affiliate will not use the Promotional Materials in any manner other than those set forth above.
- Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
- Affiliate will not publish or otherwise distribute any advertising material for Affiliate’s website that reference Company or Company’s website unless Company gives prior written consent to the distribution of such materials. Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on Affiliate’s website, in Affiliate’s own promotional materials, or in any other context except to promote Company’s website as specified in this Agreement. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.
- Affiliate will not engage in the distribution of any unsolicited bulk emails (commonly referred to as “spam”) in any way mentioning or referencing Company or Company’s website(s).
- SITE MAINTENANCE BY AFFILIATE. You are solely responsible for maintaining your website(s) and any correspondence with Your clientele. Company has no responsibility for the development, operation or maintenance of Your website(s) beyond providing You with an Account and Affiliate Code. You are responsible for all technical operations of Your website(S), including, without limitation ensuring that Your website does not contain libelous or objectionable material, and ensuring that all material on Your website(s) is legal and does not infringe on the rights of any third party (including copyright or trademark rights) or the rights of any customer. Company is not responsible for any of these duties and You agree to defend, indemnify, and hold harmless Company, its directors, officers, employees and representatives from and against any and all claims, actions, causes of action, damages, injuries, expenses (including attorney’s fees) relating to the development, operation, content and maintenance of Your website, including, without limitation, any breach of a customer’s privacy rights or any unauthorized use by You of Company’s icon, logo and other images and materials relating to Company.
- PROHIBITED ACTIVITIES. In addition to the other restrictions in this Agreement, Affiliate hereby agrees and acknowledges that when by participating in, receiving, accessing, and/or using the Affiliate Program, Affiliate Code, Account, or Company’s services, or interacting with persons or entities pursuant the terms of this Agreement or any affiliation with Company, You will not:
- Participate in, receive, access, or use, the Affiliate Program, Affiliate Code, Account, or any of Company’s services for any purpose that is outside the scope of this Agreement, illegal, beyond the scope of their intended use, or in a manner that is otherwise prohibited in this Agreement;
- Participate in, receive, access, or use, the Affiliate Program, Affiliate Code, Account, or any of Company’s services in any manner that could interfere with, disrupt, negatively affect or inhibit other “affiliates” ability to do so, or impair the functioning of the Affiliate Program and Company’s websites and services in any manner;
- Compromise the security of the Affiliate Program, Affiliate Code, Account, or any of Company’s websites and services; or
- Use, access, or attempt to use or access another affiliate’s account without authorization.
- CONFIDENTIALITY. The term “Confidential Information” shall mean information which is not generally known to the public relating to the Affiliate Program and Company’s business or personal affairs and that Affiliate is exposed to by virtue of his/her/its relationship with Company under this Agreement. Affiliate agrees not to disclose, reveal or make use of any information obtained as a result of this Agreement. All methods, concepts, ideas, product/services, or proposed new products or services shall be kept completely confidential by Affiliate. Affiliate shall keep the Confidential Information of the Company in strictest of confidences and shall use his/her/its best efforts to safeguard the Confidential Information and to protect it against disclosure, misuse, espionage, loss and/or theft. This confidentiality provision shall survive the termination or expiration of this Agreement.
- INDEMNIFICATION. You expressly agree and acknowledge that You shall defend, indemnify, and hold harmless Company, Company’s shareholders, trustees, affiliates, and successors from and against any and all liabilities and expense whatsoever–including without limitation, claims, damages, judgments, awards, settlements, investigations, costs, attorneys fees, and disbursements–which Company, Company’s shareholders, trustees, affiliates, and successors may incur or become obligated to pay arising out of or resulting from Your breach of this Agreement, Your participation in, use, access, or receipt of the Affiliate Program, Account, Affiliate Code, or Promotional Materials, Your conduct whether intentional or negligent, and/or Your violation of the rights of another. You shall defend Company in any legal actions, regulatory actions, or the like arising from or related to this Agreement. Company recognizes and agrees that all of Company’s shareholders, trustees, affiliates and successors shall not be held personally responsible or liable for any actions or representations of Company.
- TERMINATION. This Agreement shall take effect immediately, and shall remain in full force and effect indefinitely, or until terminated pursuant to this paragraph. Either Party shall have the right to terminate this Agreement at any time and for any cause. The terminating Party must give written notice to the other Party at least thirty (30) calendar days prior to the intended date of termination.
- DISCLAIMERS OF GUARANTEES. Company makes no representations or guarantees verbally or in writing regarding performance of this Agreement other than those specifically enumerated herein. You accept that, because of the nature of Affiliate Program any results experienced by different affiliates significantly vary. Company shall have no responsibility or liability for such variance.
In addition, Company makes no representations that the operation of its website, Affiliate’s ability to use or access his/her/its Account or Affiliate Code, and/or Affiliate’s ability to participate in the Affiliate Program, will be uninterrupted or error-free, and Company shall not be liable for the results or consequences of any interruptions or errors thereof. Company shall have no liability whatsoever for any claim relating to any Affiliate’s inability to properly or completely access his/her/its Account or Affiliate Code and/or the Affiliate Program, or for any claim related to any errors thereof or omissions therein.
The Affiliate Program is provided on an “as is” and an “as available” basis. Company makes no guarantees or warranties on products, services, sale or trade situations whether express or implied. Company and its related entities disclaim the implied warranties of titles, merchantability, and fitness for a particular purpose. Company makes no guarantee or warranty that the Account, Affiliate Code, and/or Affiliate Program will meet user requirements, be error free, secure, uninterrupted, or timely.
- LIMITATION OF LIABILITY. The Affiliate Program is only a service provided by Company. By entering this Agreement, Affiliate accepts any and all risks that may be associated with this Agreement and the transactions contemplated herein, whether foreseeable or non-foreseeable. Accordingly, Affiliate hereby releases Company from all damages that may result from this Agreement and/or Affiliate’s participation in the Affiliate Program. By using Company’s services and/or by participating in the Affiliate Program, Affiliate releases Company from any and all damages that may result hereunder.
Furthermore, Affiliate agrees that Company will not be held liable for any damages of any kind resulting or arising from including but not limited to direct, indirect, incidental, special, negligent, consequential, or exemplary damages resulting from or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement. Affiliate assumes total responsibility for his/her/its participation in, and use and access of the Affiliate Program. Your only remedy against Company for dissatisfaction with the Affiliate Program, Account, or Affiliate Code, is to stop using or accessing Company’s service, or participating therein.
Notwithstanding the foregoing, should Company be found liable to Affiliate or any third-party, for any reason, Company’s liability to Affiliate or to such third party is limited to the lesser of: (a) the aggregate of the total referral commissions paid or payable to You under this Agreement; and (b) One Hundred U.S. Dollars ($100.00).
Moreover, Affiliate expressly agrees that all claims that Affiliate may have against Company (or any party/entity therein) under this Agreement must be lodged with the entity having jurisdiction for such claims within one (1) year of the date of first occurrence of such claim, or will otherwise be forfeited forever.
- NO LIABILITY FOR ACCOUNT AND PROGRAM ACCESS.
- By participating in the Affiliate Program, Affiliate agrees that Company and its respective officers, directors, employees and agents (collectively, “Released Parties“) shall not be responsible or liable for, and are hereby released from, any and all costs, injuries, losses or damages of any kind, including, without limitation, death and bodily injury, due in whole or in part, directly or indirectly, to participation in the Affiliate Program or any related activity, or from Affiliate’s acceptance, receipt, possession and/or use or misuse of Company’s services and/or the Affiliate Program (including any travel or activity related thereto).
- Released Parties are not responsible for lost, late, incomplete, illegible, inaccurate, delayed, stolen, misdirected, undelivered or garbled entries; or for lost, interrupted or unavailable network, server, Internet Service Provider (ISP), website, or other connections, availability or accessibility or miscommunications or failed computer, satellite, telephone or cable transmissions, lines, or technical failure or jumbled, scrambled, delayed, or misdirected transmissions or computer hardware or software malfunctions, failures or difficulties, or other errors or difficulties of any kind whether human, mechanical, electronic, computer, network, typographical, printing or otherwise relating to or in connection with the Affiliate Program, including, without limitation, errors or difficulties which may occur in connection with the administration of the Affiliate Program, the processing of entries, the announcement of the prizes or in any Affiliate Program-related materials.
- Released Parties are also not responsible for any incorrect or inaccurate information, whether caused by site users, tampering, hacking, or by any equipment or programming associated with or utilized in the Affiliate Program.
- Released Parties are not responsible for injury or damage to Affiliate’s or to any other person’s computer related to or resulting from participating in this Affiliate Program or downloading materials from or use of the website.
- Affiliates who tamper with or abuse any aspect of the Affiliate Program, Company’s websites or services, who are in violation of this Agreement, or who act in an unsportsmanlike or disruptive manner as solely determined by Company, will be disqualified and all associated Sales will be void.
- NO RIGHT TO INJUNCTIONS. In no event shall either Party be liable for any special, consequential, incidental or punitive loss, damage or expenses (including but not limited to business interruption, lost business, lost profits or lost savings), whether based on breach of contract, tort (including negligence), strict liability, product liability, under statute or otherwise, even if it has been advised of the possibility of such damage. The Parties agree that, in the event that any suit is brought in contract or tort for recover under this agreement, that the Parties sole remedies shall be monetary damages as provided herein.
- NON-DISPARAGEMENT. In the event that a dispute arises between the Parties, the Parties agree and accept that the only venue for resolving such a dispute shall be in the venue set forth hereinbelow. In the event of a dispute between the Parties, the Parties agree that they neither will engage in any conduct or communications, public or private, designed to disparage the other. This non-disparagement provision shall survive the termination or expiration of this Agreement.
- CHOICE OF LAW AND VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to any principles or conflicts of law. The Parties hereto agree to submit any dispute or controversy arising out of or relating to this Agreement that is deemed a “small claims” matter to the Superior Court of California, County of Santa Barbara, Anacapa Division, which is located at 1100 Anacapa Street, Santa Barbara, California 93121. Otherwise, for any dispute or controversy arising out of or relating to this Agreement other than a “small claims” matter, the Parties hereto hereby submit to the jurisdiction of, and expressly agree to submit any dispute or controversy arising out of or relating to this Agreement to the Superior Court of California, County of Los Angeles, Santa Monica Courthouse, which is located at 1725 Main Street, Santa Monica, California 90401.
- WAIVER. Waiver of a breach of any provision of this Agreement by either Party shall not operate or be construed as a continuing waiver of any future breaches.
- SEVERABILITY. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
- SURVIVABILITY. The ownership, proprietary rights, confidentiality, and non-disparagement provisions and any provisions relating to payment of sums owed set forth in this Agreement, and any other provisions that by their sense and context the Parties intend to have survive the termination of this Agreement, shall survive the termination of this Agreement.
- HEADINGS. The headings for sections herein are for convenience only and shall not affect the meaning of the provisions or terms of this Agreement.
- ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the Parties, and supersedes any prior understandings or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
CONTROLLING AGREEMENT.In the event of any conflict between the provisions contained in this Agreement and any marketing materials offered or used by Company, Company’s representatives, or employees, the provisions in this Agreement shall be controlling.
- OTHER TERMS. Upon execution of This Agreement by signature below, the Parties agree that any individual, firm, company, associates, corporations, joint ventures, partnerships, divisions, subsidiaries, employees, companies, heirs, assigns, designees or consultants of which the signee is an company, officer, heir, successor, assign or designee is/are bound by the terms of this Agreement.
- COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
- QUESTIONS AND COMMENTS. Company gladly welcomes any and all comments, questions, concerns, or suggestions. Please feel free to send any such feedback by email to: [email protected]