RBAR ENERGY, INC
PLEASE CAREFULLY READ THE FOLLOWING AFFILIATE AGREEMENT. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS AN AFFILIATE OF RBAR ENERGY, INC., AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS DOCUMENT CONTAINS A DISPUTE RESOLUTION CLAUSE. BY CLICKING THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AFFILIATE AGREEMENT AS AN “AFFILIATE” (AS DEFINED BELOW).
WHEREAS, the Company is in the business of preparing, marketing, and selling fruit and nut nutrition bars.
WHEREAS, the Company desires to engage Affiliate to display the Products and/or promotions on Affiliate’s Affiliate Site (defined below) and/or through offline representation in exchange for Commissions (as defined below) for sales resulting from such display (the “Affiliate Program”), and Affiliate desires to accept such engagement.
NOW, THEREFORE, in consideration of the premises set forth above and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions. For the purposes of this Agreement, the following definitions shall apply:
“Affiliate” means any person, other than the Company, consenting to be bound by the terms of this Agreement by affirmatively clicks the button labeled “Accept” in the forgoing webpage.
"Affiliate Site" means the Affiliate's website, email, or social media pages that shall display the Company’s Products and/or promotions.
"Commission Fees" or "Commissions" means the amount earned by Affiliate, and paid by the Company, for each Qualified Purchase by a Referred Customer that Affiliate refers to the Company under and in accordance with the terms hereof.
“Company” means RBar Energy, Inc., an Arizona corporation.
"Products" means those products and services that are available for purchase through the Company’s website.
"Qualified Purchase" means a sale of Products by the Company to a Referred Customer in accordance with Section 6 hereof.
"Referred Customer" means each unique customer referred to the Company by Affiliate through a Link (defined below) provided by, or approved by, the Company, in accordance with Section 6 hereof.
"Registration Form" means any and all order forms, agreements, or waivers (whether online, paper, fax, or otherwise) submitted by Affiliate or, as applicable, the Referred Customer to consummate a Qualified Purchase.
2. Application; Enrollment.
2.1 Affiliate Signup Form. To commence the enrollment process, Affiliate must submit to the Company a completed Affiliate Program Signup Form (an “Application”). A form of Application will be provided to Affiliate by the Company.
2.2 Evaluation. The Company shall evaluate Affiliate’s Application in good faith and shall notify Affiliate of his or her acceptance or rejection in a timely manner. The Company reserves the right to reject Affiliate’s Application for any reason.
2.3 Rejection. In the event that the Company rejects Affiliate’s application, for any reason, Affiliate may not reapply to the Affiliate Program utilizing the same domain name or URL in the event that domain name or URL has already been rejected.
3. Promotion Affiliate Relationship.
3.1 Links. The Company shall make available to Affiliate any number of graphic and textual links (collectively referred to herein as "Links" or, individually, as a "Link"), that are subject to the terms and conditions hereof. The Links will serve to identify the Affiliate Site as a member of the Affiliate Program and will establish a Link from Affiliate Site to the Company’s website. The Links may connect to any area of the Company’s website. Affiliate hereby agrees that agree that Affiliate will cooperate fully with the Company in order to establish and maintain the Links on its Affiliate Site.
3.2 Display. Affiliate shall display on its Affiliate Site only those graphic or textual images (indicating Links) or messages provided by the Company or expressly approved in advanced in writing by the Company. All Affiliate Sites shall display such graphic or textual images prominently and in relevant sections of its site. Affiliate is not permitted to post any refunds, credits or discounts, or other content concerning the Company without prior written permission of the Company. Affiliate may only use coupons and discounts provided through the Affiliate Program.
3.3 Intellectual Property. EXCEPT AS EXPRESSLY PERMITTED HEREIN, AFFILIATE SHALL NOT, AND IS NOT AUTHORIZED TO (i) USE THE COMPANY’S TRADEMARKS, NAME, OR ANY OF THE COMPANY’S OTHER INTELLECTUAL PROPERTY (ALL OF THE FOREGOING, INCLUDING WITHOUT LIMITATION, THE LINKS AND THE LICENSED MATERIALS (AS DEFINED BELOW), THE "COMPANY IP"), WITHOUT THE COMPANY’S EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE COMPANY IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (iii) CAUSE OR CREATE OR ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY "INITIAL INTEREST CONFUSION" OVER THE USE OF COMPANY IP IN ANY SEARCH ENGINE ADVERTISING. AFFILIATE’S USE OF COMPANY IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER, IN ADDITION TO BEING A BREACH OF THIS AGREEMENT, SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF COMPANY IP, AND MAY SUBJECT AFFILIATE TO CLAIMS FOR DAMAGES (INCLUDING WITHOUT LIMITATION, TREBLE DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY THE ANY ACCURED LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH THE COMPANY SEEKS TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF THE COMPANY’S INTELLECTUAL PROPERTY RIGHTS.
3.4 Modification of Links; Material Breach. Links may be modified from time to time throughout the term of this Agreement by to the mutual agreement of the Parties. Any violations of the terms of this Section 3 shall constitute a material breach of this Agreement, and may result in Affiliate’s termination from the Affiliate Program or the forfeit of Commissions.
4. Federal Trade Commission Compliance. Any posts, reviews, or ratings of the Company made by Affiliate on any website that purports to provide an endorsement or assessment of the Company must prominently disclose the fact financial or in-kind compensation is provided by the Company to the Affiliate. The Company reserves the right to terminate this Agreement should the Company determine, at its discretion, that Affiliate is not in compliance with Federal Trade Commission regulations guides, as the Company deems relevant.
5. Order Processing. The Company shall process orders placed by Referred Customers following the Links from the Affiliate Site to the Company’s website. The Company reserves the right to reject orders that do not comply with certain further requirements as the Company may establish from time to time. All aspects of order processing and fulfillment, including service, cancellation, processing, refunds and payment processing shall be the responsibility of the Company. The Company shall track Qualified Purchases generated by the Affiliate Site and will make this information available to Affiliate as requested.
6.1 Criteria. The Company shall pay to Affiliate a Commission Fee for each Qualified Purchase by a Referred Customer that Affiliate refers to the Company under and in accordance with the terms of this Agreement. Each Referred Customer and each Qualified Purchase must meet the following criteria (the "Criteria"):
a. Commissions may not be paid for a Referred Customer transferred from any Company partner or subsidiary.
b. Each Referred Customer must make a Qualified Purchase and provide a valid payment for the purchased Company Products. To generate a Commission Fee, each Referred Customer must be an active, qualified customer of the Company, must be up-to-date in all payments at the time the Commission Fees are processed, and must not have been subject to any prior refund, credit, cancellation, suspension or chargeback.
c. Each Referred Customer must sign up in a manner, which in the Company’s sole judgment, definitively establishes that the Referred Customer was referred directly from Affiliate.
d. Each Referred Customer must remain in compliance with the Company’s Terms of Service, Acceptable Use Policy and other policies effective at the time the Commission Fees are processed.
e. Commission Fees may be withheld in the Referred Customer has been offered or received coupons, refunds, credits or discounts from the Affiliate, or if the Referred Customer has joined a business-opportunity program (as determined by the Company in its sole discretion) that is managed or participated in by the Affiliate, without the prior written consent of the Company.
6.2 Withholding of Commissions. The Company reserves the right to suspend payment of Commission Fees at any time and indefinitely if the Company suspects fraud or other improper activity, or a potential breach of any of the terms in this Agreement by the Affiliate or Referred Customer. The Company reserves the right to deduct from Affiliate's current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and cancelled purchases of Company Products. Where no subsequent Commission Fee is due and owing, the Company shall send Affiliate a bill for the balance of such refunded purchase upon termination of this Agreement or termination of the Referred Customer. The Company, in its sole discretion, reserves the right to withhold indefinitely any Commission Fee, or to reverse, deny or reject any Commission Fee, for:
a. Any sale of Company Products that has not been approved as an account of the Company for a period of at least thirty (30) days.
b. All Commissions generated for accounts that, in the reasonable determination of the Company, may be fraudulent.
c. Affiliate’s unauthorized alteration of any Links.
d. Customers engaging in "domain speculation," defined as the identification of two (2) web hosting accounts with the same Referred Customer's name, email address, or other identifying characteristic as determined by the Company and/or the identification of two (2) or more web hosting accounts that have no content on their websites or have similar content, templates or formatting, as determined by the Company.
The Company hereby reserves the right to immediately cancel or withhold for later review any Commission Fee based on the foregoing or that otherwise fails to meet the Criteria. It is the responsibility of the Affiliate to monitor the payment, denial and withholding of Commission Fees; The Company is not obligated to actively notify Affiliate of the status of Commission Fees. In the event that Affiliate has an inquiry regarding a Commission Fee that has been cancelled or withheld, Affiliate has thirty (30) days from the day such payment was due to contact the Company in writing regarding such. Any changes to decisions about cancelled or withheld Commission Fees are strictly at the Company's discretion. Commissions for any Referred Customer who is associated with any Company reseller, referral or other program may be removed from Affiliate’s payment. Any attempt by Affiliate to manipulate, falsify or inflate Referred Customers, Qualifying Purchases or Commission Fees to intentionally defraud the Company or violation of any of the terms of this Agreement constitutes immediate grounds to terminate this Agreement and will result in forfeiture of any Commission Fees due to Affiliate.
7. Commission Fee Accrual and Payments.
7.1 Amount of Commission. Subject to the terms of this Agreement, the Company shall pay a Commission Fee equal to the specified percentage or dollar amount set forth in the Commission Report as included in the Affiliate’s “Affiliate Console.”
7.2 Timely Processing. Commission Fees will be processed and paid to Affiliate fifteen (15) to thirty (30) days following the end of the month in which they accrued as set forth below.
7.3 Commission Accrual; Payable. Commissions will accrue and only become payable once Affiliate (i) provides all necessary documentation pursuant to Section 9 below, and (ii) reach an aggregate commission amount of fifty dollars ($50 US) (the "Commission Threshold") based on the commission rates stated on the Affiliate Console, all as applied only to Qualified Purchases which occurred within three (3) months of the end of the calendar month in which the Qualified Purchases occurred. All Qualified Purchases eligible to result in Commissions under this Section must remain active and in good standing pursuant to the terms of this Agreement in order to remain eligible for accrual. Once a Commission has accrued under this Section, the amount of such Commission shall be due and payable to Affiliate under the terms of Section 8 herein. The Company reserves the right to change the Commission Threshold by amending this Agreement, and shall provide timely notice to Affiliate for any such amendment pursuant to the terms of this Agreement.
8. Form of Payment.
8.1 Address. Commission Fees shall be paid to Affiliate based on Affiliate’s designated address as provided in its Affiliate Console. Affiliate is responsible for informing the Company of its desired form of payment based on the options available to Affiliate in its Affiliate Console.
8.2 Residency Limitations. Affiliate may choose to receive Commission Fees in the form of check made out in U.S. currency so long as Affiliate is not a resident of:
a. any country prohibited by regulations of the U.S. Office of Foreign Assets Controls, as amended from time to time; or
b. China, Nigeria, Vietnam, India, Egypt, Ghana, Indonesia, Lebanon, Macedonia, Morocco, Pakistan, Romania, Somalia, Ukraine, Russia, Bulgaria, Lithuania, Israel, Turkey or Yugoslavia.
8.3 PayPal. When available, Affiliate may choose to receive Commission Fees in the form of a “PayPal” payment. The Company is not responsible for any third-party fees charged by PayPal, banking, or any other financial institute used to process the Commission Fees.
8.4 Reissued Payments; Time Limit.
(a) Check payments will only be reissued within 120 days of original issue date in the case of a lost check or stop-payment request. Following 120 days, the payment will be voided. Check cancellation fees may apply, and shall be the sole responsibility of Affiliate.
(b) PayPal payments will only be reissued within 120 days of original issue date in the case of incorrect PayPal address or refusal from PayPal to accept payment.
8.5 Change in Form of Payment. Affiliate update or change desired payment form at any time by updating its Affiliate Console. Changes to desired payment form may take up to two payment cycles to take effect.
8.6 Modification; Dispute. The Company, in its sole discretion, reserves the right to modify the terms of this Commission payment method or schedule at any time. Such changes shall take effect when posted. Disputes filed following forty-five (45) days of the date on which the Qualified Purchase occurred will not be accepted by the Company, and Affiliate forfeits any rights to a potential claim.
9. Taxes; Change in Address.
9.1 Tax and Payment Information. It is the responsibility of the Affiliate to provide the Company with accurate tax and payment information. In the event that Affiliate fails to provide the Company with the necessary tax or payment information within ninety (90) days of a Qualified Purchase that would otherwise trigger Commission Fees, the applicable commissions shall not accrue, and no Commission Fees will be owed with respect to such Qualified Purchase.
9.2 Taxes. If it the sole responsibility of the Affiliate to pay any and all taxes arising from any Commissions received under this Agreement. In compliance with U.S. tax laws, the Company shall issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable threshold.
9.3 Changes in Address. Affiliate responsible for providing timely notice to the Company regarding any changes to postal and e-mail addresses, as well as any changes to Affiliate’s name, email address, contact information, tax identification number, or other personal information. Any address changes must be made in the Affiliate Console at least fifteen (15) business days prior to the end of the calendar month in order for Commission Fees for that month to be provided to the revised address.
10. Obligations Regarding the Affiliate Site. Affiliate shall be solely responsible for the development, operation, and maintenance of its Affiliate Site. The Company hereby disclaims all liability and responsibility for such matters. The Company reserves the right to monitor signups through the Affiliate Site from time to time to determine if the Affiliate is in compliance with the terms of this Agreement. In the event that Affiliate is not in compliance with the terms of this Agreement, the Company may terminate this Agreement immediately.
11. Responsibilities of the Company. The Company shall be responsible for providing all information necessary to allow Affiliate to properly install and manage the Links. The Company shall be solely responsible for order processing, for orders/Qualified Purchases placed by a Referred Customer following a Link from the Affiliate Site, for tracking the volume and amount of Qualified Purchases generated by the Affiliate Site, and for providing information to Affiliate regarding Qualified Purchases. The Company shall be solely responsible for all order processing, including but not limited to payment processing, cancellations, and refunds.
12. Policies and Pricing. The Company hereby reserves the right to change its policies and operating procedures from time to time. Prices and availability of Company Products may vary from time to time, from Affiliate to Affiliate, and from region to region. Because price changes may affect products that Affiliate may have listed on its Affiliate Site, Affiliate may not be able to include price information on its Affiliate Site. The Company shall use commercially reasonable efforts to present accurate information, but the Company cannot guarantee the availability or pricing of any particular Product.
13. Publicity. Affiliate shall not create, publish, transmit or distribute, under any circumstances, any bulk electronic mail messages without prior written consent of the Company. The Company, in its sole discretion, reserves the right to inspect and approve each such mailing. Affiliate may send e-mails containing an Company affiliate link or information regarding the Company only to persons that have previously consented to the receipt of such information.
14. Licenses and Use of Intellectual Property.
14.1 Company Intellectual Property. Subject to the limitations set forth in this Agreement, the Company hereby grants to Affiliate a non-exclusive, non-transferable, revocable license to (i) access the Company site through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use the Company’s trademarks and logos and similar identifying material relating to the Company (but only in the form(s) as provided by the Company) (collectively, the "Licensed Materials"), as approved in advance by the Company. Affiliate may not alter, modify, or change the Licensed Materials in any way. Affiliate shall not make any specific use of any Licensed Materials for purposes other than for purposes of this Agreement. Affiliate hereby agrees not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays the Company, any hosted member of the Company or any Company employee or representative in a negative manner. the Company reserve all of the Company’s rights in the Licensed Materials and of the Company’s other proprietary rights. the Company may revoke Affiliate’s license at any time, by giving Affiliate written notice. The license contained in this Section will terminate upon expiration or termination of this Agreement.
14.2 Affiliate Intellectual Property. Affiliate hereby grants to the Company a non-exclusive license to utilize Affiliate names, titles, and logos, as the same may be amended from time to time (the "Affiliate Trademarks"), to advertise, market, promote, and publicize in any manner the Company’s rights hereunder; provided, however, that the Company shall not be required to so advertise, market, promote, or publicize the Affiliate Trademarks. The license contained in this Section shall terminate upon the expiration or termination of this Agreement.
15. Term of the Agreement. The term of this Agreement will begin upon the Company’s acceptance of Affiliate’s Application and shall continue until terminated by either Party. Either Party may terminate this Agreement at any time, with or without cause. Affiliate is eligible to earn Commission Fees only on Qualified Purchases occurring during the term, and Commission Fees earned through the date of termination will remain payable only if the orders for the related Company Products are not cancelled and comply with all Terms laid out in this Agreement. The Company may withhold the final payment of Commission Fees as necessary to ensure the legitimacy of all Qualified Purchases.
16. Modification. The Company hereby reserves the right to modify any of the terms and conditions contained in this Agreement at any time. The Company shall notify Affiliate of such change within five (5) business days of such modification. Affiliate’s continued participation in the Affiliate Program following Affiliate’s receipt of such notice shall constitute binding acceptance of such modification.
17. Disclaimers. The Company makes no express or implied warranties or representations with respect to the Affiliate Program or any Company Products sold through the Affiliate Program. The Company makes no representation that the operation that its website will be uninterrupted or error free, and the Company shall not be liable for the consequences of any interruptions or errors, including the tracking of information about Referred Customers during any period of interruption.
18. Relationship of Parties. Affiliate is an independent contractor of the Company, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties. Affiliate has no authority to make or accept any offers or representations on behalf of the Company, and Affiliate shall not make any statement, whether on its Affiliate Site or otherwise, that could be reasonably interpreted otherwise.
19. Representations and Warranties. Affiliate hereby represents and warrants to the Company the following:
19.1 Binding Obligation. This Agreement has been duly and validly executed and delivered by Affiliate and constitutes Affiliate’s legal, valid, and binding obligation, enforceable against Affiliate in accordance with its terms.
19.2 No Prior Violations. The execution, delivery, and performance of this Agreement by Affiliate and the consummation by Affiliate of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which Affiliate is subject, (ii) any order, judgment, or decree applicable to Affiliate or binding upon Affiliate’s assets or properties, (iii) any provision of Affiliate’s bylaws or certificate of incorporation, or (iv) any agreement or other instrument applicable to Affiliate or binding upon Affiliate’s assets or properties.
19.3 Affiliate Intellectual Property. Affiliate is the sole and exclusive owner of the Affiliate IP and has the right and power to grant to the Company the license to use Affiliate’s trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to Affiliate or binding upon Affiliate’s assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
19.4 Consent. 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 Affiliate in connection with the execution, delivery, and performance of this Agreement or the taking by Affiliate of any other action contemplated hereby.
19.5 Litigation. There is no pending or, to the best of Affiliate’s knowledge, threatened claim, action, or proceeding against Affiliate, or any affiliate of Affiliate, with respect to the execution, delivery, or consummation of this Agreement, or with respect to Affiliate’s trademarks, and, to the best of Affiliate’s knowledge, there is no basis for any such claim, action, or proceeding.
19.6 Affiliate Site Content. During the term of the Agreement, Affiliate will not include in Affiliate’s Site content that is, in the Company’s determination, unlawful, harmful, threatening, defamatory, obscene, harassing, racially, ethically, or otherwise objectionable or are in violation of the Company’s Terms of Service or Acceptable Use Policy.
19.7 Age. Affiliate is at least eighteen (18) years of age.
19.8 Referred Customer. Each Referred Customer and each Qualifying Purchase referred or submitted by Affiliate to the Company, shall be valid, genuine, unique and not fraudulent and meets each of the Criteria for generating a Commission Fee as provided in this Agreement.
20. Limitation of Liability. THE COMPANY WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF THE COMPANY HASBEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
21. Indemnification. Affiliate hereby agrees to indemnify and hold harmless the Company and the Company’s subsidiaries and affiliates, and its directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of (i) any claim that the Company’s use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by Affiliate herein, or (iii) any claim related to Affiliate’s site, including, without limitation, its development, operation, maintenance and content therein not attributable to the Company.
22. Confidentiality. Each of the Parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, Company vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving Party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each Party is hereby authorized to deliver the copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
23. Independent Investigation. Affiliate’s Application acknowledges that Affiliate has read this agreement and agree to be bound by all its terms and conditions. Affiliate understands that the Company may at any time (directly or indirectly) solicit Company relationships on terms that may differ from those contained in this agreement. The Company may also solicit Company relationships with entities that operate websites that are similar to or compete with Affiliate’s website. Affiliate has independently evaluated the desirability of participating in the Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this agreement.
24. General Provisions.
24.1 Governing Law. The laws of the United States and the State of Arizona shall govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Pima County, Tucson, Arizona, and Affiliate irrevocably consents to the jurisdiction of such courts. Affiliate may not assign this Agreement, by operation of law or otherwise, without the Company’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the Parties and their respective successors and assigns. the Company’s failure to enforce Affiliate’s strict performance of any provision of this Agreement will not constitute a waiver of the Company’s right to subsequently enforce such provision or any other provision of this Agreement.
24.2 Severability. It is the desire and intent of the parties hereto that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any particular provision of this Agreement is adjudicated by a court of competent jurisdiction to be invalid, prohibited, or unenforceable for any reason, such provision, as to such jurisdiction, will be ineffective, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited, or unenforceable in such jurisdiction, it will, as to such jurisdiction, be so drawn, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
24.3 Entire Agreement. Except as otherwise expressly set forth herein, this document embodies the complete agreement and understanding among the Parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the Parties, written or oral, which may have related to the subject matter hereof in any way.
24.4 Counterparts. This Agreement may be executed in two or more counterparts, including by facsimile, email, or electronic signature, each of which will be an original, whether stored in electronic or print format, and all of which taken together will constitute one and the same agreement.
24.5 Descriptive Headings. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
24.6 Construction Where specific language is used to clarify by example a general statement contained herein, such specific language will not be deemed to modify, limit, or restrict in any manner the construction of the general statement to which it relates. The language used in this Agreement will be deemed to be the language mutually chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party.
24.7 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
24.8 Nouns and Pronouns. Whenever the context may require, any pronouns used herein will include the corresponding masculine, feminine, or neuter forms, and the singular form of nouns and pronouns will include the plural and vice-versa.