The Nutritional Aesthetics® Alliance Affiliate Program Terms of Service
Agreement
This agreement (the “Agreement) is made between the Nutritional Aesthetics® Alliance, LLC (the “Company”), and the Affiliate, and collectively, the “Parties”) for participation in the Company’s affiliate program.
BY CHECKING THE BOX INDICATING THAT YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AFFILIATE AGREEMENT, OR BY CONTINUING TO PARTICIPATE IN THE AFFILIATE FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED AFFILIATE AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE NUTRITIONALAESTHETICS.COM SITE, YOU (A) AGREE TO BE BOUND BY THIS AFFILIATE AGREEMENT; (B) ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS AFFILIATE AGREEMENT; AND (C) HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS AFFILIATE AGREEMENT, INCLUDING THE AFFILIATE MEMBER REQUIREMENTS. IN ADDITION, IF THIS AFFILIATE AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS PROGRAM AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS PROGRAM AGREEMENT.
Affiliate wishes to include certain materials promoting Company, and to include a link to Company’s website within those materials on Affiliate’s website;
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
Registration.
To use (or continue to use) Company’s affiliate program, Affiliate must provide Company with truthful, accurate and complete registration information. If any such information changes, Affiliate must immediately update its registration information.
Verification
Company has the right to confirm or otherwise verify or check, in its sole determination, the truth and accuracy of any registration information at any time.
Please note that the verification of Affiliate’s registration information, specifically, Affiliate’s name, address and tax identification number, against a third party database may be considered under certain laws to constitute a “credit check.” Notwithstanding that, Affiliate’s participation in Company’s affiliate program as an Affiliate does not depend on Affiliate’s credit worthiness or financial stability. Company is not making as part of the registration process, and will not otherwise make any type of inquiry to any third party regarding any individual’s credit history and personal financial information without first obtaining such individual’s express prior authorization to do so.
Please be advised that if any information is determined in good faith by Company to be misleading, inaccurate or untruthful, Company may restrict, deny or terminate Affiliate’s account, Affiliate’s access and use of, and/or any benefits derived from Affiliate’s participation in Company’s affiliate program; Company may also withhold payment of any commissions and/or other fees that may be or become due or payable to Affiliate, and may assess charges against such amounts for Company’s activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
Participation.
To join Company’s affiliate program, Affiliate must be an individual who is at least 18 years old or a legal entity.
Use of the Affiliate Program.
You may use Company’s affiliate program only for business purposes and not for personal, household or family purposes. If Affiliate has registered in his or her personal capacity, Affiliate hereby acknowledges that the basic services made available by Company to Affiliates are provided to Affiliate free of charge and solely for the purpose of facilitating business transactions. Affiliate hereby agrees that Affiliate will only use such service for the purpose of facilitating business transactions for Affiliate’s business and for no other purpose.
Use of Affiliate Links.
Each affiliate link used by Affiliate in relation to Company must include, in unaltered form, the special “tagged” link codes and/or other transaction tracking codes in the manner and format made available or otherwise dictated by Company that, among other things, associate such affiliate link with such engagement.
Distribution of Affiliate Links.
If Affiliate currently distributes, or plans to distribute, affiliate links on, to or through Sites other than those owned or operated by Affiliate and registered with Company, Affiliate hereby agrees that upon Company’s request from time to time, Affiliate will provide Company a list of Sites that are not owned or operated by Affiliate (together with any reasonably requested information about any such Sites) where affiliate links (and associated Promotional Materials) have been, or are planned to be distributed and/or used, and (ii) Affiliate agrees to provide prompt and reasonable cooperation to Company in responding to any requests, complaints, claims or other issues raised by Company regarding where and how such Company’s affiliate links are distributed and/or used, including ceasing further distribution of such affiliate links (and associated Promotional Materials) as appropriate.
No Modification of Affiliate Links.
Affiliate will not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by Company to be used in connection with such affiliate link so that it may be properly tracked by Company.
Privacy Policy. Affiliate will ensure that any and all Sites employed by Affiliate in connection with Affiliate’s participation in Company’s affiliate program will feature an easy-to-understand privacy policy, linked, at a minimum, conspicuously from such Site’s home page, with a link that contains the word “Privacy”, “Legal”, “Terms” or similar language. Such privacy policy shall, in addition to the disclosures about Affiliate’s privacy practices, identify the collection, disclosure and use of any information related to an end user that Affiliate provide or may provide to Company or other Sites or persons with which Affiliate has any Company affiliate link or other arrangement in relation thereto. Such privacy policy shall also provide information on Affiliate’s use of tracking devices, such as but without limitation to, cookies, including tracking devices enabled by Company at Affiliate’s request on Affiliate’s behalf. Affiliate’s website will also include all legally required information regarding Affiliate’s use of tracking devices, such as cookies, including where required, information regarding the removal of cookies and other tracking devices. As to Affiliate’s personal information, Company may use Affiliate’s personal information (i) for the purpose of facilitating Affiliate’s participation in the Company’s affiliate program, which may include, indexing your name and relevant information about your business in Company’s database, and (ii) to contact Affiliate generally regarding Affiliate’s use of Company’s services.
Backing Up Data and Other Precautions.
Data transfer, conversion, processing and storage are subject to the likelihood of human and machine errors, delays, interruptions and losses. Company is not liable for any such events or their consequences. Affiliate is solely responsible for adopting measures to limit the impact of such events, including backing up any reports or data provided to Affiliate. Company may, from time to time, with or without notice, change the time period covered, type and/or scope of current or historical data stored by Company and/or to which it provides Affiliate with access.
No Hacking. Affiliate agrees not to hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code, or use or cause to be used in extraordinary and unreasonable or inappropriate ways or amounts, the Company affiliate program, website or network, including any servers, bandwidth supply, equipment, software and other technological resources provided by Company.
No Spam.
Affiliate may not use any affiliate links in any electronic message unless (a) Affiliate has received the express written authorization of Company to use email or other electronic messages to promote it or its affiliate link and (b) any and all such electronic messages comply in all respects with this Agreement, and any and all applicable laws, including the requirements of the Can Spam Act of 2003 (Public Law No. 108-187). Further, no electronic message initiated or sent by Affiliate or on Affiliate’s behalf may identify Company, except as expressly authorized in writing by Company as a sender or sponsor of such electronic message.
No Interference. Affiliate may not, through downloadable or other technology, replace, intercept, redirect, block, alter or otherwise interfere with the full functioning and intended actions of any affiliate link that has been placed or distributed by another Affiliate including any action that would in any way prevent the behavior or result that would occur or would have occurred had an end user activated such affiliate link without Affiliate’s interference.
No Infringing Uses.
Affiliate may not use any name, trademark, service mark, domain name copyrighted materials, Promotional Materials (as defined in section 10 below) or other intellectual property rights (“Intellectual Property Rights”) of Company or any third party in connection with Affiliate’s use of any affiliate links and Company property, in any way or for any purpose that infringes or violates any Intellectual Property Rights or other rights of Company or such third party, whether for the purpose of increasing the levels of tracked activities attributable to Affiliate’s affiliate links or for any other purpose. Affiliate will also refrain from any unauthorized use of the Intellectual Property Rights or Promotional Materials of the Company.
Fraud, Abuse, etc. Affiliate will not, and will not knowingly permit other persons to, engage in any fraudulent, abusive or illegal activity in connection with Affiliate’s participation in Company’s affiliate program.
Valid Referrals Only. Affiliate will place or use qualified links only with the intention of delivering valid sales. Affiliate may not, nor knowingly permit any person to, activate a qualifying link or inflate the amount of any sought-after or resulting tracked activities through any method or technology that does not actually deliver an end user to the Company webpage at http://www.holisticallyhaute.com/ associated with such qualifying link.
Promotions and Materials.
16.1. Company shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to Company’s website, as specified by Company.
16-2 . You will not, without Company’s written consent, issue any press release or make any other public communication with respect to this Affiliate Agreement, your use of the Promotional Materials or Company Intellectual Property, or your participation in the Program. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to any charity or other cause), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement. You must, however, clearly state the following on your site: “[Insert your name] is a participant in Affiliate Programs, designed to provide a means for sites to earn Affiliate Program advertising fees by advertising and linking to online retailers and online services.
Use of Promotional Materials.
The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site shall conform to the following terms, conditions and specifications:
17.1. Affiliate may not use any graphic, textual or other materials to promote Company’s website, products, methods or services other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display.
17.2. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website (and the products, methods and services available thereon), and for linking to Company’s website.
17.3. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration of modification.
17.4. The Promotional Materials will be used to link only to Company’s website, to the specific page and address as specified by Company.
17.5. You may not use or display any Nutritional Aesthetics Alliance Mark in any manner (i) that implies sponsorship or endorsement by us; (ii) to disparage us, our products, methods or our services; (iii) that may, as determined by us, diminish or otherwise damage our goodwill in any Nutritional Aesthetics Aesthetics Mark; or (iv) other than as specifically authorized under the Agreements.
17.6. You may not alter or modify any Nutritional Aesthetics Alliance Mark in any manner. You may display an Nutritional Aesthetics Alliance Mark only in the exact format in which we provide it to you. No alternate representation or stylization is permitted. For example, you may not change the proportion, color, or font of any Nutritional Aesthetics Alliance Mark or make any additions.
17.7. Each Nutritional Aesthetics Alliance Mark must appear by itself, with reasonable spacing between each side of the Nutritional Aesthetics Alliance Mark and other visual, graphic or textual elements. Under no circumstance may any Nutritional Aesthetics Alliance Mark be placed on any background that interferes with the readability or display of that Nutritional Aesthetics Alliance Mark.
17.8.. You acknowledge and agree that all rights in and to the Nutritional Aesthetics Alliance Marks are our exclusive property, and any goodwill generated by your use of any Nutritional Aesthetics Alliance Mark will inure to our exclusive benefit. You will not take any action that is in conflict with our rights in or ownership of any Nutritional Aesthetics Alliance Mark.
17.9. You are not allowed to use any trademark of Nutritional Aesthetics Alliance or its affiliates, or a variant or misspelling of a trademark of Nutritional Aesthetics Alliance or its affiliates.
17.10. We may modify these Provisions at any time and in our sole discretion by posting a change notice or revised Provisions on the Company’s site. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR USE OF THE COMPANY’S MARKS. YOUR CONTINUED USE OF ANY MARK FOLLOWING OUR POSTING OF A CHANGE NOTICE OR REVISED GUIDELINES ON THE COMPANY’S SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
17.11. The license set forth in this Section 11 will immediately and automatically terminate if at any time you do not timely comply with any obligation under this Affiliate Agreement or any Operational Documentation, or otherwise upon termination of this Affiliate Program Agreement. In addition, we may terminate the license set forth in this Section 11 in whole or in part upon written notice to you. You will promptly remove from your site and delete or otherwise destroy all of the Content and Nutritional Aesthetics Alliance with respect to which the license set forth in this Section 11 is terminated or as we may otherwise request from time to time.
License.
Company hereby grants to Affiliate a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the expiration or termination of this Agreement.
Intellectual Property.
Company retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 18.
Relationship of Parties.
This Agreement shall not be construed to create any employment relationship, agency relationship, franchise relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect.
Commissions on Qualifying Sales.
21.1. In exchange for Affiliate’s display of the Promotional Materials, and for Affiliate’s compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Affiliate a commission (the “Commission”) a flat fee upon Qualifying Sales made to a user that accesses Company’s website through a link on Affiliate’s website. The current commission is 20% per referral. This commission is subject to change by the Company at any time. Notification to Affiliate of any change in commission percentage will be given by Company at the email address on hand for the Affiliate. Commission will only be based on purchases made by users who were not previously on the mailing list of the Nutritional Alliance/Rachael Pontillo/Holistically Haute, and for individual, initial purchases only–not future purchases made on the site by the same user.
21.2. Company shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given reasonable access to these records upon request, and is available through the affiliate area at https://skinwellnesspro.com/. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by Company within 30 days of discovering such discrepancy.
21.3. Commissions are held for a period of 30 days from any full payment purchase, and 30 days from the final payment of the 3-month payment plan to protect the Company in the event of any chargeback that may occur. Company shall pay all Commissions accrued and payable to Affiliate within 14 days of the first day of each month (the “Commission Payment Date”). If on any Commission Payment Date, the amount of total Commissions accrued and payable to Affiliate is less than $200.00, then such accrued and payable balance shall be held over to the following month, and paid together with the Commissions due for that month. If at any time, the balance of accrued and payable Commissions is held over for 3 consecutive months, then Company shall pay all accrued and payable Commissions to Affiliate in the third month, regardless of the total amount owed. Payment is made by check.
21.4. In the event that Affiliate materially breaches this Agreement and Company terminates this Agreement within 30 days of such breach, then any accrued and payable Commissions owing to Affiliate shall be forfeited, and Company shall not be obligated to pay such Commissions to Affiliate.
21.5. In the event that Affiliate materially breaches this Agreement and Company terminates this Agreement within 30 days of such breach, then any accrued and payable Commissions owing to Affiliate shall be forfeited, and Company shall not be obligated to pay such Commissions to Affiliate.
21.6. Qualifying Sales exclude, and Company will not pay commissions on any of, the following:
21.6.1. any product, method or service purchase that is not correctly tracked or reported because the links from your site to the Holistically Haute Site are not properly formatted;
21.6.2. any product, method or service purchased through a Special Link by you or on your behalf, including products, methods or services you purchase through Special Links for yourself, friends, relatives, or associates (e.g., personal orders, orders for your own use, and orders placed by you for or on behalf of any other person or entity);
21.6.3. any product, method or service purchased for resale or commercial use of any kind;
21.6.4. any product, method or service purchased after termination of this Affiliate Agreement;
21.6.5. any product, method or service order that is canceled or returned; and
21.6.6. any product, method or service purchased by a customer who is referred to the Nutritional Aesthetics Alliance Site through any of the following:
21.6.6.1 a Prohibited Paid Search Placement where “Prohibited Paid Search Placement” means an advertisement that you purchased through bidding on keywords, search terms, or other identifiers (including Proprietary Terms) or other participation in keyword auctions. “Proprietary Term” means keywords, search terms, or other identifiers that include the word and or any variation of “Nutritional Aesthetics,”or a Nutritional Aesthetics Alliance specific product identifier or variations or misspellings of any of those words. “Redirecting Link” means a link that sends users indirectly to the Nutritional Aesthetics Alliance Site via an intermediate site or webpage and without requiring the user to click on a link or take some other affirmative action on that intermediate site or webpage. “Search Engine” means Google, Yahoo, Bing, or any other search engine, portal, sponsored advertising service, or other search or referral service, or any site that participates in any of their respective networks, or
21.6.6.2. a link to the Nutritional Aesthetics Alliance Site, including a Redirecting Link, that is generated or displayed on a Search Engine in response to a general Internet search query or keyword (i.e., in natural, free, organic, or unpaid search results), whether those links appear through your submission of data to that site or otherwise.
Affiliate’s Representations and Warranties.
Affiliate represents and warrants the following:
22.1. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
22.2. Affiliate’s website does not contain any materials that are:
22.2.1. Sexually explicit, obscene, or pornographic;
22.2.2. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
22.2.3. Graphically violent, including any violent video game images; or
22.2.4. Solicitous of any unlawful behavior
22.3. Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s website. Nothing on Affiliate’s website 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.
22.4. Affiliate will not use the Promotional Materials in any manner other than those set forth in Section 17 above.
22.5. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
22.6. Affiliate will not publish or otherwise distribute any advertising materials 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 its website, in its 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 or profile name that incorporates Company’s name, or that is confusingly similar to Company’s name.
22.7. Affiliate will not engage in the distribution of any unsolicited bulk emails (spam) in any way mentioning or referencing Company or Company’s website.
Indemnification.
23.1. Affiliate shall indemnify Company and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in Section 7 above. Affiliate shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
23.2. Affiliate further agrees to defend, indemnify and hold harmless Company and Company Related Parties, and its and their directors, officers, employees, agents, subcontractors and representatives for and against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) that directly or indirectly arise out of or are based on: any misrepresentation or breach of any representation, warranty, or covenant made by Affiliate in this Agreement, any conduct, or activity, error or omission by Affiliate, including in relation to Affiliate’s participation on any Company Network, performance of any Company-tracked engagement, or otherwise, any violation by Affiliate of any law, regulation or rule, Affiliate’s use of any other Company Offerings, and/or any actual or alleged infringement by Affiliate of any Intellectual Property Rights or other rights of any person.
23.3. Company may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by Affiliate. Company may participate in the defense of all claims as to which it does not assume defense and control, and Affiliate shall not settle any such claim without Company’s prior written consent.
Confidentiality.
Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Company Information.” Affiliate may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.
Disclaimer of Warranties.
25.1. COMPANY’S AFFILIATE PROGRAM IS PROVIDED “AS IS, WHERE IS” AND “AS AVAILABLE.”
25.2. COMPANY AND COMPANY’S RELATED PARTIES HEREBY DISCLAIMS ANY AND ALL WARRANTIES , EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO ACCURACY, ADVERTISERABILITY, COMPLETENESS, CURRENTNESS, SECURITY, NON-INFRINGEMENT, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE OF COMPANY’S AFFILIATE PROGRAM, WEBSITE OR NETWORK OR THAT AFFILIATE’S USE OF THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE.
Limitation of Liability.
26.1. If Affiliate reasonably determines that Company’s affiliate program does not materially meet Company’s obligations under this Agreement, then Affiliate must notify Company in writing within ten (10) days of receiving any such allegedly nonconforming services. Affiliate’s failure to so notify Company on a timely basis shall mean that Affiliate accept such services, and Company shall thereafter have no liability whatsoever with respect to such services. If upon receipt of any notice under this Section, Company may, at its sole discretion, re-perform the service in question or otherwise provide Affiliate with any substitution or replacement services in lieu thereof. Any re-performance or provision of substitute or replacement services shall in no event be construed as an admission that the original service was non-conforming or otherwise improper, and Affiliate’s acceptance of the same constitutes Affiliate’s sole remedy and in such case constitutes Company’s maximum liability for any such alleged breach of this Agreement.
26.2. IF, NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON COMPANY, THEN AFFILIATE AGREES THAT THE TOTAL LIABILITY OF COMPANY, AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND REPRESENTATIVES, TO AFFILIATE WILL NOT EXCEED TWENTY-FIVE DOLLARS ($25). AFFILIATE RECOGNIZES AND ACKNOWLEDGES THAT THIS LIMITATION OF DAMAGES IS FAIR AND REASONABLE, IN LIGHT OF THE FACT THAT COMPANY IS PROVIDING THIS SERVICE TO AFFILIATE AT NO CHARGE TO AFFILIATE.
26.3. NONE OF COMPANY AND COMPANY’S RELATED PARTIES WILL BE LIABLE TO AFFILIATE (WHETHER IN CONTRACT OR BASED ON WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, EVEN IF SUCH PERSON WAS AWARE THAT SUCH DAMAGES COULD RESULT.
26.4. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS AGREEMENT SHALL NOT APPLY TO ANY LIABILITY FOR (I) DEATH OR PERSONAL INJURY RESULTING FROM COMPANY’S NEGLIGENCE OR (II) FRAUDULENT MISREPRESENTATION ON THE PART OF COMPANY. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS SECTION 15 MAY NOT APPLY TO AFFILIATE.
Amendments.
27.1. Upon at least fourteen (14) days’ prior written notice, Company may, at any time, add to, remove or otherwise amend any or all terms, conditions and/or other provisions of this Agreement, including any Network Policies and Guidelines.
27.2. Changes in Service. Upon prior written notice, Company may add, remove, suspend or discontinue any aspect of any Company Network or any other Company Offering.
27.3. AFFILIATE’S CONTINUED USE OF ANY COMPANY NETWORK AND/OR COMPANY OFFERING AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE PERIOD SHALL CONSTITUTE AFFILIATE’S BINDING AND LEGALLY ENFORCEABLE AGREEMENT TO SUCH CHANGE. IF AFFILIATE DO NOT WISH TO ACCEPT ANY SUCH CHANGE, THEN AFFILIATE MUST TERMINATE AFFILIATE’S ACCOUNT WITH SUCH COMPANY NETWORK AND/OR COMPANY OFFERING AND CEASE USING SUCH COMPANY NETWORK AND ANY ASSOCIATED COMPANY OFFERING.
Term and Termination.
28.1. This Agreement shall take effect immediately, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 28.
28.2. 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 30 days prior to the intended date of termination.
28.3. Upon any termination of this Agreement and/or Affiliate’s participation in Company’s affiliate program:
28.3.1. Affiliate shall immediately cease to use and remove from any and all Site(s), whether or not owned or operated by Affiliate, any and all affiliate links and all other Promotional Materials provided to Affiliate in connection with Affiliate’s participation in Company’s affiliate program.
28.3.2. Any and all licenses and rights granted to Affiliate under this Agreement shall immediately cease and terminate.
28.3.3. Company may terminate or, in its sole discretion, direct or redirect to any destination Site any and all affiliate links continued to be used by Affiliate without Company incurring any further liability or obligation to Affiliate.
28.3.4. Any and all confidential or proprietary information of Company that is in Affiliate’s possession or control must be immediately returned or destroyed. If requested, Affiliate will certify in a writing signed by Affiliate or an authorized officer as to the return or destruction of all such confidential or proprietary information.
28.4. Company may withhold and offset against any and all compensation and/or other fees that are then unpaid to Affiliate. Following assessment of any fees or other charges owing to Company, and subject to Company holding any amount it determines in its sole discretion to be needed to support any of Affiliate’s indemnification and/or other obligations and/or liabilities under this Agreement. Such withholding of such compensation and/or other fees is in addition to any other rights and remedies that Company may have in contract, at law or in equity.
28.5. All rights or remedies arising out of a breach of any terms of this Agreement shall survive any such termination of this Agreement.
28.6. Sections 28 and 29, and any provision which by its terms are intended to survive any expiration or termination of this Agreement, will survive any expiration or termination of this Agreement. Affiliate’s representations and warranties in this Agreement shall survive execution, delivery, acceptance, performance, expiration or termination of this Agreement.
Miscellaneous.
29.1. Force Majeure. Company shall not be liable to Affiliate by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, strikes, lockouts or other industrial disputes, earthquakes, interruptions in telecommunications services or Internet facilities, or any other cause which is beyond the reasonable control of Company, whether or not similar to the foregoing.
29.2. Assignability. Affiliate shall not assign or delegate any of the rights or obligations under this Agreement, and any such attempted assignment or delegation shall be void. Subject to the preceding sentence, this Agreement is binding on and inures to the benefit of the respective successors, heirs and assigns of each party.
30.3. Severability. If any portion of this Agreement is held by a court with jurisdiction to be invalid or unenforceable, the remaining portions hereof, shall remain in full force and effect.. If any provision of this Agreement shall be judicially unenforceable in any jurisdiction, such provision shall not be affected with respect to any other jurisdiction.
29.4. Governing Law; Consent to Jurisdiction; Jury Trial Waiver. This Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania, U.S.A., without regard to its conflicts of law principles. Affiliate consent to the personal and exclusive jurisdiction of the Federal and Pennsylvania State courts sitting in ________ County, California, U.S.A. EACH PARTY WAIVES RIGHTS TO TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT. The U.N. Convention on the International Sale of Goods shall not apply to this Agreement.
29.5. 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.
29.6. Notices. Company may provide notices to Affiliate by posting notices or links to notices in Affiliate’s Account Area. Notices to Affiliate also may be made via e-mail, regular mail, overnight courier or facsimile at Affiliate’s contact addresses of record for Company’s affiliate program. If Affiliate provides notice to Company, such notice shall be sent, postage prepaid by U.S. registered or certified mail or by international or domestic overnight courier, to Nutritional Aesthetics Alliance, LLC, PO Box 397, Flourtown, PA 19031 Attention: Rachael Pontillo. Notices sent by email or telecopy, with or without electronic confirmation, will not be deemed to be valid unless actual receipt is confirmed in writing by an authorized personnel member of Company.
29.7. 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.
29.8. Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
29.9. Entire Agreement. This Agreement constitutes the entire agreement between Company and Affiliate, and supersedes any prior understanding 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.
Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.