AFFILIATE PUBLISHER AGREEMENT

 

This Affiliate Publisher Agreement (the “Agreement”) is made, entered into, and effective on the day it is accepted by Affiliate (“Effective Date”), by and between Web Traffic 2 Go Holdings, L.C., a Utah limited liability company with offices at 223 West Bulldog Blvd. #115, Provo, UT 84604 (“Company”), and Affiliate Publisher (“Affiliate”). Company and Affiliate may also be individually referred to herein as “Party” and collectively as “Parties.”

 

RECITALS

          

WHEREAS, Affiliate desires to generate customer leads and/or procure sales for offers and/or campaigns available through Company by traffic generated by Affiliate and/or Affiliate’s Network of Independent Affiliate Publishers; and

 

WHEREAS, Affiliate desires to have access to Company’s Lead Tracking Software; and

 

WHEREAS, upon certain terms and conditions, Company is willing to allow Affiliate to generate customer leads and/or procure sales for offers and/or campaigns available through Company through traffic generated by Affiliate and/or Affiliate’s Network of Independent Affiliate Publishers; and

 

WHEREAS, upon certain terms and conditions, Company is willing to allow Affiliate to have access to Company’s Lead Tracking Software; and

 

WHERAS, Company is not an Advertiser, does not procure its own leads, does not have direct contact with consumers, does not have control or responsibility over Advertiser’s content, Advertiser’s conduct, or Affiliate’s conduct, does not quality check leads, is not responsible for the methods in which leads are generated, and is acting in its capacity as merely a broker between the Advertiser and the Affiliate;

 

NOW THEREFORE, in consideration of the mutual covenants and conditions contained herein, the parties hereby agree as follows:

 

TERMS AND CONDITIONS

 

1.                  Definitions.

1.1.            “Advertiser” means the company, including its officers, directors, employees, agents, representatives, contractors, suppliers, and/or predecessors and successors in interest that owns the campaign and its related Ads, Creatives, and websites, has direct interaction with the consumer, and develops and markets the products or services sold to the consumer.

1.2.            “Campaign” means the Advertiser’s offers and their associated Creatives and websites.

1.3.            “Company” means the Company referenced above, including its officers, directors, employees, agents, representatives, contractors, suppliers, and/or predecessors and successors in interest, which purchases media on behalf of Advertisers for the purpose of generating consumer traffic that results in Leads or Sales.

1.4.            “Company’s Lead Tracking Software” shall mean all web pages and applications that Company leases, owns, operates or hosts for the purpose of tracking traffic, sales, and leads.

 

1.5.            “Copy” shall mean any text used in and Ad or Creative.

 

1.6.            “Creative” shall mean all Advertiser-approved artwork, text, audio, video, and the like distributed to consumers to encourage the purchase of offers available through Company.

 

1.7.            “IO” means any Insertion Orders submitted by Affiliate, which will set forth specific details pertaining to each specific Campaign, including but not limited to compensation to Affiliate, Creatives, etc.

 

1.8.            “Affiliate’s Network of Independent Affiliate Publishers” means the independent publishers through which Affiliate generates traffic and leads.

 

1.9.            “Offer” means the products or services marketed or produced by Advertiser that is being sold as part of this agreement.

 

1.10.        “Service” means the business methods, practices, processes, Creatives, technologies, Independent Publishing Network systems and venue Company uses to provide to Affiliates advertising opportunities for the sale of Advertiser’s goods or services.

2.                  Advertiser Creative and Advertiser Website.

 

2.1.            Creative. Company will provide Affiliate with all Creative materials for the Campaigns, including product/service descriptions, graphic images, logos, and Copy for Affiliate’s use. Only approved Creative materials may be used by Affiliate. Affiliate shall not edit Creative in any way. Should Affiliate desire to propose changes to Creative, a written request must be submitted to Company outlining Affiliate’s specific proposed changes to Creative. Company must provide its express written consent of proposed changes before proposed revisions to Creative may be used.

 

2.1.1.      To the extent the Campaign involves emails, the Copy shall also include approved subject and from lines, offer description (in text and HTML formats), terms and conditions (if applicable), and any other information necessary to comply with applicable state and federal laws and regulations including, but not limited to, the CAN-SPAM Act of 2003 (the “Act”).

 

2.2.            Licenses. Company grants Affiliate a revocable, non-exclusive license to use, reproduce, publicly and digitally display and perform, transmit and broadcast Offer name, logos, trademarks, trade names, service marks, URLs and slogans to display, market, promote and publicize Campaigns on the Service. Company further grants to Affiliate a personal, non-exclusive, revocable, non-transferable, limited license to all intellectual property rights owned or controlled by Company specific to the Offer (including but not limited to copyrights, trademarks, and service marks) solely to the extent that such license is required for performance of the Service in accordance with this Agreement. Such License shall terminate immediately upon termination, for any reason, of any IOs then in effect. Company grants Affiliate a non-exclusive, revocable, non-transferable, limited license to use Company’s Lead Tracking Software, systems, and processes during the term of this Agreement.

 

2.3.            CPA Tracking. With respect to all cost per acquisition ("CPA") campaigns, Affiliate will provide Company with unique tracking links that will record the origin of each user action including clicks and sales by unique tracking link. Company will allow Affiliate online access to the statistics regarding such user actions ordered and aggregated by unique tracking link. Company will provide access to records as they become available that will allow Affiliate to monitor the volume of User Actions Affiliates have generated.

 

2.4.            CPM and CPC Tracking. With respect to all other Campaigns, including cost per impression ("CPM"), cost per click ("CPC") and co-registration campaigns, Affiliate shall be responsible for calculating the User Actions that comply with the terms of the applicable IO.

 

3.                  Company Service. Company agrees to provide the Service whereby Affiliate is provided access to Campaigns.

 

4.                  Term and Termination.

 

4.1.            Term. This Agreement shall begin on the Effective Date and remain in effect for an initial term of one (1) year. Unless terminated by Affiliate upon thirty (30) days’ written notice prior to the end of the initial term or any renewal term, the Agreement shall automatically renew for successive one (1) year terms.

 

4.2.            Company may terminate this Agreement, or any Campaigns, without notice or liability, for any reason or for no reason, at any time. This Agreement may also be terminated at any time by either party, effective immediately upon written notice, if the other party: (a) files a voluntary petition in bankruptcy; (b) makes an assignment for the benefit of its creditors; or (c) breaches any of the material terms of this Agreement, if the breach is not remedied within thirty (30) days from receipt of written notice of such breach.

 

4.3.            In the event of termination of this Agreement, Sections 4, 5, and 9 through12, together with any payment obligations incurred, shall survive.

 

4.4.            In the event of written termination and/or if this Agreement expires by its own terms, Affiliate will immediately discontinue use of the Service.

 

5.                  Confidential Information.

 

5.1.            The Parties agree that they may exchange confidential, proprietary information related to the provision and use of the Files in accordance with this Agreement, including email addresses, trade secrets, know-how and confidential information (collectively “Confidential Information”). Each Party agrees to use the other Party’s Confidential Information solely for the purposes contemplated by this Agreement, including the IO. Confidential Information shall include the terms and existence of this Agreement. During the Term of this Agreement and at all times after its termination, each Party and its employees and agents shall maintain the confidentiality of the Confidential Information of the other Party and not sell, license, publish, display, distribute, disclose or otherwise make available such Confidential Information to any third party nor use such Confidential Information except as authorized by this Agreement. Neither Party shall disclose any such Confidential Information other than to employees, agents and permitted contractors of such party who reasonably need to know such Confidential Information in connection with the exercise of rights or the performance of obligations under this Agreement without the prior written consent of the other Party. For purposes of this Agreement, the identity of Company’s Advertisers, service providers, affiliates, business partners, and relationships is Company’s Confidential Information and shall be treated in accordance with this section.

 

5.2.            Notwithstanding the foregoing, provided that the receiving Party uses reasonable efforts to give the disclosing Party reasonable advance notice thereof so as to afford the disclosing party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information from any unauthorized use or disclosure, either Party may disclose Confidential Information: (a) as required by a properly authorized and authenticated governmental request; (b) in response to a subpoena or court order; (c) to comply with applicable laws, rules or regulations; or (d) in response to an investigation of fraud regarding a specific consumer. The obligations of the Parties set forth herein shall not apply to any information that: (a) is in the public domain at or after the time it was disclosed by the disclosing Party to the receiving Party through no fault of the receiving Party; (b) was rightfully in the receiving Party’s possession free of any obligation of confidentiality at or after the time it was communicated to by the disclosing Party; (c) is disclosed with the prior written approval of the disclosing Party; (d) is independently developed by the receiving Party without reference to or use of the Confidential Information; (e) is or becomes available to the receiving Party from a person other than the disclosing Party or any of its Representatives who is not bound by an obligation to maintain the confidentiality of such information; (f) is necessary to disclose in order to establish the rights of either Party under this Agreement; or (g) is required to be disclosed pursuant to an order or requirement of a court, administrative agency or governmental body, provided that the receiving Party shall promptly notify the disclosing Party of the facts thereof to enable the disclosing Party to seek a protective order or otherwise prevent or restrict disclosure of such information, and upon request of the disclosing Party, shall reasonably cooperate with the disclosing Party (at the disclosing Party’s sole cost and expense) to obtain such protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or the disclosing Party waives compliance (in whole or in part) with the terms and conditions of this Agreement, the receiving Party shall disclose only that portion of the Confidential Information that is required to be disclosed and shall use all reasonable efforts to ensure that all Confidential Information that is disclosed, shall be accorded confidential treatment.

6.                  Representations, Warranties and Indemnification.

 

6.1.            Affiliate warrants and represents at all times that: (a) Affiliate has all necessary rights and authority to enter into this Agreement, and (b) the execution of this Agreement by Affiliate, and the performance of its obligations and duties hereunder, does not and will not violate any agreement to which Affiliate is a party or by which it is otherwise bound.

 

6.2.            With respect to a Campaign involving emails, Affiliate further represents and warrants, that Affiliate has the power and authority to bind itself and any Agency to these representations and warranties, that Affiliate will comply with all aspects of the CAN-SPAM Act of 2003, and Affiliate will not submit a Campaign for transmission through email: (a) with misleading or fraudulent header information or with a “from line” that is materially false or misleading and does not accurately identify the person sending the email; (b) with a subject line that is misleading, false or misrepresentative or is likely to mislead the recipient about the content of the email; (c) that does not include a functioning return email address, clearly and conspicuously displayed, that can be used to submit a reply email message requesting not to receive future commercial electronic mail messages from the sender at the email address where the message was received and that also remains capable of receiving such messages for no less than 30 days after the transmission of such message; (d) that does not include a clear and conspicuous identification that the email is an advertisement or solicitation, a clear and conspicuous notice of the opportunity to decline to receive further communications, and a valid physical postal address of the Advertiser and Affiliate’s Network of Independent Affiliate Publishers; or (e) with any content that: (i) infringes or violates any intellectual, proprietary or privacy rights; or (ii) is misrepresentative, defamatory or violates any applicable law or regulation. Affiliate also represents and warrants that it will not transmit a Campaign including an email to any individual that has requested not to receive any emails more than ten (10) days after receipt of such request, provided that the email falls within the scope of the request. To the extent of any duties arising under, but strictly limited to, the Services as defined herein, Affiliate agrees to comply with the CAN-SPAM Act of 2003 and contractually to bind its publishers in Affiliate’s Network of Independent Affiliate Publishers to terms at least as restrictive as those contained therein concerning their email practices and modification of Advertiser-approved Creatives.

 

6.3.            Affiliate agrees to indemnify, defend and hold harmless Company, the Advertiser and their respective subsidiaries, agents, affiliates, partners, officers, directors and employees from and against any third party’s loss, cost, claim, injury or damage (including reasonable attorneys' fees and costs) resulting from claims or actions arising out of or in connection with the Affiliate’s breach of this Agreement. Affiliate acknowledges that each indemnifies Party listed above is an intended third party beneficiary of these indemnities, and Affiliate agrees that it will not assert a defense based upon lack of privities against any indemnified party listed above seeking to enforce this section. Affiliate shall not settle any such claim in any manner having a material, detrimental effect on the indemnified parties without that party’s prior written consent. The indemnified Parties shall have the right to participate in any such claim with counsel of its own selection at the indemnified Parties’ own expense.

 

7.                  Traffic Quality.

 

7.1.            Fraud. Advertiser actively monitors traffic for fraud. In the event potential fraud is detected, Affiliate’s account or the account of the offending Independent Affiliate may be made inactive pending further investigation. In the event Advertiser determines that fraud has taken place, Affiliate and/or the offending Independent affiliate publisher shall forfeit all commissions payable, and shall also be required to reimburse Company for past fraudulent activities.

 

8.                  Commission Payment.

 

8.1.            Unless otherwise specified in the IO, Affiliate’s aggregation of billing activity is based on a calendar month payable net 15. Company does not guarantee payment to Affiliate if Company is not paid by the Advertiser.

 

8.2.            Minimum Payments. Commission payment totals must exceed $100.00 to be valid commissions. Payment shall be withheld until Affiliate meets the required $100.00 minimum.

 

8.3.            Non-viable Leads. Company shall not be required to pay commissions on non-viable leads. Company shall determine in its sole discretion what constitutes a non-viable lead. Company may dispute a payment obligation for reason of fraud or other alleged wrongdoing, traffic quality, incentivized traffic, late payments, credit card refusals, expirations, charge backs, duplicate transactions, and/OR any and all other disputes in connection with User Actions. In no event shall Company be liable for any lost profits, lost revenues or for any indirect, incidental, consequential, special or exemplary damages arising out of or related to any credit card refunds, penalties, fees, chargeback costs AND/or the like.

 

8.4.            Payment Records. Company shall insert a tracking pixel in its tracking system for each Ad to be delivered hereunder. Company will provide Affiliate with a link to the confirmation page where Affiliate can view the pixel for approval prior to initiating the advertising campaign. Payment will be made based on Company’s count of viable leads or Affiliate's count of viable leads, whichever is greater. All such records provided by Company shall be the sole property of Company. In the event that the tracking methods employed malfunction or the Advertiser’s website is inoperable, for the period in question, Company will determine invoicing in its sole discretion.

 

8.5.            Unless otherwise provided in the IO or approved in writing by Company, Affiliate is expressly forbidden from offering incentivizes, offer points, rewards, cash or prizes of any kind in order to induce a User Action (hereinafter, “Incentivized Traffic”).

9.                  Approval of Affiliate’s Independent Affiliate Publishers. Company reserves the right to withhold or refuse approval of Affiliate’s independent affiliate publishers, their websites, and newsletters for any reason, in its sole discretion. Affiliate’s independent affiliate publishers must be at least 18 years of age. In order to be eligible for approval, all of Affiliate’s Network of Independent Affiliate Publishers’ websites and/or newsletters must meet the following criteria:

9.1.            Be written in English

9.2.            Receive a minimum of 100 unique page views per month.

9.3.            Cannot offer incentives to users to click on advertisements, including, but not limited to, awarding them cash, points, prizes, contest entries, etc.

9.4.            Be fully functional at all levels; no "under construction" sites or sections

9.5.            Spawning process pop-ups and exit pop-ups are prohibited

9.6.            The content of the website and/or newsletter cannot contain any adult content or link from or to any adult materials, including, but not limited to:

9.6.1.      Explicit, vulgar or obscene language

9.6.2.      Posting or referencing of sexually explicit images or other offensive content

9.6.3.      Promotion of adult services, such as phone sex or escort services

9.7.            The content of the website and/or newsletter cannot infringe on any personal, intellectual property or copyrights, including, but not limited to:

9.7.1.      Racial, ethnic, political, hate-mongering or otherwise objectionable content.

9.7.2.      Investment, money-making opportunities or advice not permitted under law.

9.7.3.      Gratuitous violence or profanity

9.7.4.      Material that defames, abuses, or threatens physical harm

9.7.5.      Promotion of illegal substances or activities such as illegal online gambling, how to build a bomb, counterfeiting money, etc.

9.7.6.      Software Pirating (e.g., Warez, Hotline)

9.7.7.      Hacking or Phreaking

9.7.8.      Any illegal activity whatsoever

9.7.9.      Any questionable or controversial subject matter

9.7.10.  Any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic

 

10.              Proprietary Rights. Affiliate agrees that it does not have, nor will it claim, any right, title or interest in the Service, the Creatives or any underlying technology, software, applications, data, methods of doing business or any elements thereof, or any content provided Company. In addition, Affiliate acknowledges that all information, data and reports received from Company as part of the Service are proprietary to and owned by Company. If instructed to do so by Company, Affiliate will immediately discontinue the use of any such reports or data.

 

11.              Privacy. Affiliate agrees to comply with all applicable privacy laws. Affiliate further agrees to post conspicuously on each of its websites a Privacy Policy, linked, at a minimum, from the website’s home page, that: (a) discloses its privacy practices, including its use of a third party for its ad serving activities; (b) identifies the collection and use of information gathered in connection with both ad serving activities and delivery of its content; and (c) provides the user with instructions as to opting-out from such collection. Company shall have no liability, to any third party or to Affiliate, in the event that Affiliate does not comply with any provision of this Agreement including, but not limited to, the provisions in this Section.

 

12.              Limitation of Liability and Disclaimer of Warranty. Except as expressly set forth in this Agreement, Company makes no warranties and expressly disclaims all warranties, express or implied, as to the subject matter of this Agreement, including implied warranties of merchantability and fitness for a particular purpose. Company shall not be liable for any Campaign or email, including but not limited to the content thereof, any unavailability or inoperability of the Internet, unavailability or consequences of any Campaign, the Creatives, Services, or any technical malfunction, computer error, corruption or loss of information related to or arising out of the Services, the Creatives or any Campaign. COMPANY, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, CONTRACTORS AND SUPPLIERS PROVIDE THE CREATIVES, SYSTEMS, AND SERVICE “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. COMPANY, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, CONTRACTORS AND SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to Affiliate. This warranty gives Company specific legal rights and you may also have other legal rights that vary from state to state.

IN ADDITION, COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES THAT THE SERVICE WILL MEET AFFILIATE’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UPDATED, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, DISCLAIMS ALL WARRANTIES THAT ANY FILES AVAILABLE FOR DOWNLOAD FROM THE INTERNET WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MAY MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES (COMPANY DOES NOT ASSUME ANY RESPONSIBILITY OR RISK FOR AFFILIATE’S OR CUSTOMERS’ USE OF THE INTERNET), DISCLAIMS ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND DISCLAIMS ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF COMPANY. COMPANY MAKES NO COMMITMENT TO UPDATE THE SERVICE. COMPANY MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTION ENTERED INTO THROUGH THE SERVICE, AND IS NOT RESPONSIBLE FOR ANY USE OF CONFIDENTIAL OR PRIVATE INFORMATION BY THIRD PARTIES. AFFILIATE AGREES THAT IT IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED OR ACCESSED THROUGH THE USE OF THE COMPANY SITE OR SERVICE.

 

COMPANY MAKES NO REPRESENTATIONS THAT THE SERVICES OR ANY OF ITS MATERIALS ARE APPROPRIATE OR AVAILABLE FOR USE IN ALL LOCATIONS. NO USERS MAY ACCESS THE SERVICE FROM TERRITORIES WHERE THE CONTENT OR THE BUSINESS OF THE SERVICE MAY BE ILLEGAL.

 

IN NO EVENT SHALL COMPANY, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, CONTRACTORS AND SUPPLIERS, BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES RESULTING FROM ANY CLAIM ARISING OUT OF, OR RELATED TO, THIS AGREEMENT AND/OR USE OF THE COMPANY SITE INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE. COMPANY’S LIABILITY IS LIMITED TO THE LESSER OF (A) THE PAYMENTS MADE BY COMPANY TO AFFILIATE IN THE 6 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (B) ONE-THOUSAND DOLLARS ($1,000.00).

 

13.              Non-Solicitation, Non-Circumvention with Advertisers. Affiliate will not knowingly participate in any performance-based advertising relationship with any Advertisers using Company’s service for a period of twelve (12) months following the termination of this Agreement, unless a previously existing business relationship between Advertiser and Affiliate can be demonstrated to the reasonable satisfaction of Company. In this connection, both Parties agree and acknowledge that if Affiliate violates its obligations hereunder, Company will be entitled to damages in the amount of twenty-five percent (25%) of the gross revenues resulting from sales conducted by Affiliate through the advertising or marketing efforts of Company’s Advertisers during the twelve (12) month period following the termination of this Agreement.

 

14.              Non-Solicitation, Non-Circumvention of Protected Worker. Affiliate recognizes that Company has proprietary relationships with skilled employees and contractors. Affiliate shall not directly or indirectly solicit or hire any Protected Worker to perform services for Affiliate or to perform services for any other person, sole proprietorship, partnership, corporation, or other entity for the eighteen (18) month period following termination or expiration of this Agreement. “Protected Worker” means any (i) contractor of Company, (ii) employee or ex-employee of Company, or (iii) employee or ex-employee of any contractor of Company.

 

15.              Miscellaneous.

 

15.1.        Relationship Between the Parties. This Agreement does not create an agency, joint venture, partnership, fiduciary relationship, or any similar relationship between the parties, and neither party has the right or authority to act for, or on behalf of, the other party.

 

15.2.        Third Parties. The provisions of this Agreement are not for the benefit of any third party.

 

15.3.        Notices. Without precluding any other sufficient form of notice, all notices, demands, or other communications under this Agreement shall be deemed given if sent by email to the email addresses specified of the parties as set out in the Insertion Order and directed to the attention of the individuals signing this Agreement on behalf of the parties or to another address or individual specified by the party. Emails shall be deemed delivered five (5) business hours after such email is sent.

 

15.4.        Amendment and Modifications. No supplement, modifications, or amendment of this Agreement by Affiliate shall be binding unless executed in writing by both parties. The terms and conditions of an IO specific to a campaign shall prevail over this agreement or other written instrument submitted by Affiliate.

 

15.5.        Waiver. Neither Party’s failure to insist on strict performance of any provision of this Agreement shall be deemed a waiver of any of its rights or remedies, nor shall it relieve the other Party from performing any subsequent obligation strictly in accordance with the terms of this Agreement. No waiver shall be limited to provisions of this Agreement specifically referred to herein and shall not be deemed a waiver of any other provision or subsequent breach. No waiver shall constitute a continuing waiver unless the writing states otherwise.

 

15.6.        Assignment. This Agreement shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of either Party, whether by merger, sale of assets, or other agreements or operation of law. Neither Party shall assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without the other Party’s prior written consent. Any attempted assignment or delegation in contravention of this provision shall be void and ineffective and shall be deemed to be a material breach hereof. Notwithstanding the above, the Parties may assign, in full or in part, the payment obligations arising under this Agreement.

 

15.7.        Choice of Law and Jurisdiction. This Agreement is governed by, and to be construed in accordance with, the laws of the State of Utah without regard to that state’s conflict of law provisions. Both parties expressly consent to the exclusive personal jurisdiction and venue for any claim relating to or arising out of this Agreement in the state and federal courts of competent jurisdiction in Utah.

 

15.8.        Specific Enforcement and Attorneys’ Fees. Affiliate acknowledges that Company will be irreparably injured if the provisions of this Agreement are not specifically enforced. If Affiliate commits, or in the belief of Company, threatens to commit a breach of any of the provisions of this Agreement, Company and each of its subsidiaries shall have the right and remedy, in addition to any other remedy that may be available at law or in equity, to have the provisions of this Agreement specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to Company and its subsidiaries, and that money damages will not provide an adequate remedy there for. Such injunction shall be available without the posting of any bond or other security, and you hereby consent to the issuance of such injunction. If this Agreement is breached by Affiliate, Company will be entitled to recover its legal fees and costs incurred in the enforcement of this Agreement.

 

15.9.        Headings and Inclusiveness of Terms and Pronouns. Headings are for the convenience of reference only and do not alter the rights and obligations of the parties. Wherever from the context it appears appropriate, each Term stated in either the singular or the plural shall include the singular and the plural, and pronouns stated in either the masculine, feminine, or neuter shall include the masculine, feminine and neuter.

 

15.10.    Severability. If any provision of this Agreement is held invalid, such provision shall be restated to reflect, as nearly as possible, the original intention of the parties in accordance with applicable law, and the remainder of the Agreement shall remain in force.

 

15.11.    Entire Agreement. This Agreement, together with the attachments hereto, contains the entire understanding of the agreement between the parties and supersedes all prior agreements and understandings between them, oral or written, relating to the subject matter hereof.

 

15.12.    Advice of Counsel. The parties each acknowledge and agree that they have reviewed this Agreement in its entirety, and every part thereof, that they understand same, that they have had the opportunity to review this Agreement and to consult with their independent counsel as to the Agreement to the extent they desire, and that the terms and conditions hereof adequately and correctly reflect their respective understandings of the subject matter hereof.

 

15.13.    Force Majeure. Neither Party shall be liable to the other for any delay or failure due to: acts of God, war, transportation difficulties, labor strikes, natural disasters, riots, telecommunications or information services infrastructure, hacking, spam, any failure of a computer, server, or software, or acts or omissions of vendors or suppliers beyond the control of the Parties.

 

15.14.    Construction. This Agreement has been mutually drafted and no presumption relating to ambiguities in favor of one interpretation over another due to the identity of the drafting Party shall arise.

 

15.15.    Counterparts. This Agreement shall become effective upon the execution by each of the Parties hereto and may be executed in any number of counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument. Additionally, signed copies of this Agreement may be delivered by “.pdf”, “.jpg”, or fax and will be accepted as originals.

 

15.16.    Authority to Execute. Each individual signing below swears and affirms that he or she has authority to sign on behalf of the Party to this Agreement for which he or she signs.