AFFILIATE PARTNER AGREEMENT

This Affiliate Partner Agreement (the “Agreement”) is made and entered into on the date of this Agreement submission (the “Effective Date”), by and between iink Endorsements, LLC, a Florida limited liability company (“Company”), and the individual or entity completing the webform located at: https://iinktech.affiliate-reporting.com/Welcome/LoginAndSignUp.aspx (“Affiliate Partner”).

WHEREAS, Company is in the business of software and platform development related to providing access to property insurance payments and sells certain related products, services and solutions (collectively and individually, “Products and Services”) to certain end-users (each, a “Customer”); and

WHEREAS, Affiliate Partner, in the course of its business, interacts with and has exposure to certain current and prospective Customers; and

WHEREAS, Affiliate Partner wishes to receive from Company, and Company wishes to grant to Affiliate Partner, the right to promote and market the Products and Services to prospective Customers not otherwise known to Company pursuant to terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

  1. Definitions.  Capitalized terms not otherwise defined in this Agreement have the following meanings:

“Claim” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law, in equity or otherwise.

“Company IP” means any Intellectual Property owned by or licensed to Company.

“Intellectual Property” means any and all trade secrets, Trademarks, copyrights, patents, rights of reproduction, rights of publicity, Moral Rights, and any other intangible property in which any Person holds proprietary rights, title, interests or protections, however arising, pursuant to the laws of any jurisdiction throughout the world, including all applications, registrations, renewals, issues, reissues, extensions, divisions and continuations in connection with any of the foregoing, the right to secure registrations, renewals, reissues and extensions, and the goodwill connected with the use of and symbolized by any of the foregoing.

“Market” means any jurisdiction in which Company, Affiliate Partner and/or their respective customers operate or plan to operate throughout the world.

“Marketing Materials” means all documents, work product, concepts, advertising, designs, slogans and other materials that are (a) used by Company in the marketing, promotion and sale of any of the Products and Services, and/or (b) provided to Affiliate Partner by Company for use in the marketing, promotion and sale of any of the Products and Services, whether or not such materials are used by Company.

“Moral Rights” means any right to claim authorship of the Work Product, any right to object to any distortion or other modification of the Work Product, and any similar right, existing under the law of any country, or under any treaty.

“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, governmental authority, or any other entity.

“Referral” means, which respect to Affiliate Partner, a Registered Customer that is successfully registered by Affiliate Partner pursuant to Section 5.2 that subsequently purchases Products and Services.

“Registered Customer” means, with respect to Affiliate Partner, a Customer that is registered to Affiliate Partner pursuant to Section 5.2 that was not previously registered to another Affiliate partner or otherwise known to Company at the time of such registration.

“Representatives” means a party’s affiliates, employees, officers, directors, partners, shareholders, agents, attorneys, third-party advisors, successors and permitted assigns.

“Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, taglines, corporate names, domain names, and other similar designations of source, sponsorship, association or origin, together with the goodwill associated with any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.

  1. Scope of Agreement; Appointment.  Company hereby authorizes Affiliate Partner to be a Affiliate partner of Company within the Market, and hereby appoints Affiliate Partner to market and promote, on its own account, in its own name, and on its own responsibility and liability, the Products and Services to current and prospective Customers on a non-exclusive basis.  Affiliate Partner hereby acknowledges the foregoing appointment and agrees to market, promote, sell and/or provide Company with sales lead information with respect to prospective Customers whose service and/or product requirements might be met by the Products and Services (or otherwise met by Company).  The parties hereto acknowledge and agree that Company, in its sole discretion, may change, modify and/or alter any of the Products and Services, the prices of such Products and Services, and/or the Marketing Materials at any time.

  2. Relationship of Parties.  Nothing in this Agreement creates any franchise, dealership, agency, joint venture, partnership, or other form of joint enterprise, business opportunity, employment or fiduciary relationship between the parties.  Affiliate Partner is an independent contractor pursuant to this Agreement.  Affiliate Partner acknowledges and agrees that it does not and will not offer or sell Products and Services under a business or marketing plan or system prescribed by Company.  Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.

  3. No Exclusivity.  The parties hereto acknowledge and agree that the appointment of Affiliate Partner as anAffiliate partner is non-exclusive, that Company may engage other Persons to market and promote the Products and Services to current and prospective Customers, and that the Products and Services may be marketed, promoted and/or sold to Customers by Company or other Persons who are Affiliate partners and/or Representatives of Company.  Affiliate Partner retains the right to perform the same or similar type of services for third parties during the Term.

  4. Affiliate Partner Obligations.

    1. Affiliate Partner Effort.  For the duration of the Term (as defined below), Affiliate Partner shall, in accordance with the terms and conditions of this Agreement and at its own cost:

      1. use its best efforts to advertise, promote, market and/or sell the Products and Services to current and prospective Customers to maximize the adoption and usage of, and Customer satisfaction with the Products and Services.

      2. maintain sufficient knowledge of the industry and products competitive with the Products and Services (including specifications, features and benefits) so as to be able to explain in detail to prospective Customers: (i) the differences between the Products and Services and competing products; and (ii) information on standard protocols and features of each of the Products and Services;

      3. comply with any and all written instructions, specifications, and/or guidelines provided by Company from time to time, including without limitation, any and all of the Company's policies relating to the Products and Services and the commercialization of the Products and Services;

      4. promptly give Company written notice of any notice, complaint or claim of which Affiliate Partner becomes aware concerning any data security breach, personal injury, property damage, or other injury alleged to have been caused, in whole or in part, by any of the Products and Services, any use of the Products and Services, or any act or omission of Affiliate Partner under or in connection with this Agreement; and conduct business in accordance with applicable law and in a manner that is consistent with good business practice and reflects favorably at all times on the Products and Services and the good name, goodwill, and reputation of Company.

    2. Registration of Customers.  A prospective Customer will become registered as a Registered Customer of Affiliate Partner primarily through the prospective Customer’s engagement with trackable links included in Affiliate Partner’s website, social media accounts and posts, blog posts, and/or other interactive media content. In addition to the foregoing, Company will request that the Customer provide certain information, including, among other things, the Person that referred the Customer to Company upon each Customer’s registration with Company, and such Customer responses will be considered evidence of a Affiliate Partner Referral unless there is evidence of attribution to another Affiliate partner (in which case all such evidence will be weighed and considered by Company, in its sole discretion) or such Person is otherwise already known to the Company.  In the event that Affiliate Partner wishes make any inquiry about a prospective Customer in connection with or in furtherance of a Referral or to confirm whether a prospective Customer is already known to the Company, Affiliate Partner is encouraged to email Company regarding the prospective Customers and may also request Company confirm attribution with respect to such Person, whether or not such Customer is a Registered Customer of Affiliate Partner. In the event that the prospective Customer becomes a Customer and Company is unable to attribute a Referral to Affiliate Partner via Customer interactions or responses (or otherwise), Company may, in its sole discretion, register a Customer to Affiliate Partner based on Affiliate Partner requests for attribution; provided that the Company shall have no obligation to make such attribution.  In the event that such Person is not registered to another Affiliate partner or otherwise known to Company, each Referral will be attributed to Affiliate Partner upon and subject to approval of each prospective Customer as a Customer and Registered Customer by Company, which approval shall be made in the Company’s sole discretion, and Affiliate Partner shall have no responsibility or obligation in connection with subsequent discussions or negotiations between Company and the Registered Customer following such attribution unless requested otherwise by Company.  Regardless of how the registration of a Registered Customer is attributed to Affiliate Partner, Company will provide Affiliate Partner with email confirmation of each Referral upon the registration of the applicable Registered Customer and each Registered Customer will be given a numerical code identifying the Customer as a Registered Customer.  For avoidance of doubt, Affiliate Partner will not be permitted to register any Person who is an existing, prospective or former Customer, or other Person with whom Company has had contact or that is otherwise known to Company (including, without limitation, former Customers and other Persons which are or were previously registered to Affiliate Partner or other Affiliate partners).  Company reserves the right to reject any potential Registered Customer, in Company’s sole and absolute discretion.  Affiliate Partner shall not interfere with any Customer relationship of Company at any time prior to, during or after the Referral Period.

    3. Affiliate Partner Personnel.  Affiliate Partner shall be responsible for the payment of all compensation owed to the any and all of Affiliate Partners employees or contractors (collectively, the “Affiliate Partner Personnel”), including, if applicable, the payment and withholding of social security and other payroll taxes, withholding of income taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.  All persons employed by Affiliate Partner in connection with the Services shall either be employees of Affiliate Partner or consultants or independent contractors retained by Affiliate Partner, and Affiliate Partner shall be solely responsible for complying with all laws and agreements affecting such persons.

    4. Restrictions.  Affiliate Partner shall not, and shall not permit any other Person to, access, use, or perform any other act on or relating to any of the Products and Services, any Marketing Materials or other Company Materials, or the Company except as expressly permitted by this Agreement.  In marketing, promoting and/or selling the Products and Services, Affiliate Partner shall only use the Marketing Materials provided by Company and/or otherwise authorized by Company for use by Affiliate Partner in performing the activities contemplated by this Agreement.  The Marketing Materials may not be used, displayed or otherwise implemented except in strict compliance with the usage instructions and other requirements provided by Company, which may be revised from time to time.  Affiliate Partner shall not use any document, materials, item or other resource in the marketing, promotion and/or sale of the Products and Services pursuant to this Agreement which are not Marketing Materials without Company’s prior written consent.  If Company determines that Affiliate Partner is improperly using the Marketing Materials or Company IP (or any other Company Materials), or that Affiliate Partner is using any unauthorized item(s) to market, promote and/or sell the Products and Services, Affiliate Partner agrees to promptly modify its usage as requested by Company; provided, that misuse of Marketing Materials, Company IP, and/or any other Company Materials by Affiliate Partner, or Affiliate Partner’s use of unauthorized items to market, promote, and/or sell the Products and Services shall constitute a material breach of this Agreement. 

    5. Publicity.  Any mention of Company in a press release, blog, social media content, website page and/or any other public medium is subject to prior review and written approval by Company’s marketing department and/or media contact.  For clarity, Affiliate Partner must receive separate approval for each mention and each Affiliate.

  5. Company Obligations and Responsibilities.

    1. Company shall use commercially reasonable efforts to:

      1. Provide Affiliate Partner with means of submitting prospective Customers for registration as a Registered Customer, subject to the approval of Company and the terms, provisions and limitations set forth in this Agreement.  For the avoidance of doubt, the Company shall have no obligation to allow Affiliate Partner to register any Prospective Customer as a Registered Customer or to attribute any Referral to Affiliate Partner except as set forth herein;

      2. Subject to the terms and provisions of this Agreement, pay the Referral Fee with respect to each Referral as set forth in Section 7;

      3. Subject to Company’s prior written agreement to provide such Marketing Materials, provide Marketing Materials as Affiliate Partner may request in order to market the Products and Services to current and prospective Customers; provided, however, that Company may, in its sole and absolute discretion, retract, recall, revise, modify and/or edit such Marketing Materials at any time; and provided, further, that Company and its licensors are, and shall remain, the sole and exclusive owner of all right, title and interest in and to all Marketing Materials, including all Company IP therein, and that Affiliate Partner shall have no right or license to use Company Materials and/or Company IP in any way other than to the extent necessary to market the Products and Services to current and prospective Customers during the Term or as may be otherwise authorized by Company in writing; and all other rights in and to Company Materials, including, without limitation, the Marketing Materials, are expressly reserved by Company;

      4. Notify Affiliate Partner of a successful Referral upon the first purchase of Products and Services by a Registered Customer; and

      5. Provide Affiliate Partner with a status report of all Referrals upon request, but not more than once every three (3) months; provided, that Company, in its sole discretion, may provide status reports and information regarding Registered Customers at any time.

  6. Compensation.

    1. Referral Fee.  In exchange for each Referral, Company shall pay Affiliate Partner a commission (the “Referral Fee”) that is equal to [ten percent (10%) of the gross revenue] realized by Company from sales of Products and Services to a Registered Customer of Affiliate Partner during the applicable Referral Period.  For purposes of this Agreement, the term “Referral Fee Period” means the period of time commencing on the date and time that Affiliate Partner registers the Registered Customer as a Referral on the Partner Portal and ending at 11:59 P.M. Eastern Time on the first anniversary of such commencement date.  Notwithstanding anything herein to the contrary, Company shall not be obligated to pay the Referral Fee with respect to any Referral if (a) the applicable Customer (i) is not a Registered Customer, (ii) has not entered into the applicable agreements with Company within one hundred twenty (120) days of Company’s approval of such Customer as a Registered Customer of Affiliate Partner, or (iii) has not used Products and Services in a live production environment at its initial location for at least thirty (30) days; (b) Company has not received timely payment(s) from such Registered Customer for the Products and Services provided; or (c) Affiliate Partner is in breach of this Agreement.  The Referral Fee shall be the sole compensation paid to Affiliate Partner in connection with this Agreement, and Company shall have no obligation to provide any other form of remuneration or to reimburse Affiliate Partner for any expenses incurred in connection with this Agreement or the activities contemplated herein.

    2. Payment of Referral Fee.  Subject to the limitations set forth above, Company will pay Affiliate Partner the accrued but unpaid amount of any Referral Fees that are due and payable within thirty (30) days after the end of each calendar quarter in which such amounts became payable to Affiliate Partner during the applicable Referral Fee Period.  Company will pay the amounts of such Referral Fees, if any, to Affiliate Partner in cash, check or ACH; provided, that in the event that Affiliate Partner is also a Customer, Affiliate Partner may elect to apply any or all of such amount of the Referral Fees payable to Affiliate Partner as an offset to any outstanding balance that would otherwise be payable to Company by Affiliate Partner by providing notice to the Company of such election at any time during the Referral Fee Period.  For the avoidance of doubt, Affiliate Partner may only apply the amount of any Referral Fees payable by Company to Affiliate Partner, if any, only to the extent that of to outstanding balances payable by Affiliate Partner to Company, and Affiliate Partner may not carry forward the amount of any Referral Fee payable to Affiliate Partner to offset future balances payable to Company.

  7. Ownership and Use of Intellectual Property and Marketing Materials.  

    1. Ownership.  Affiliate Partner hereby irrevocably assigns, transfers and conveys to Company, exclusively and perpetually, all rights, titles, and interests throughout the world it may have or acquire in the Work Product (as defined below), including all Intellectual Property or other proprietary rights therein or otherwise arising from the performance of this Agreement.  No rights of any kind in and to the Work Product, including all Intellectual Property, are reserved to or by the Affiliate Partner or will revert to Affiliate Partner.  Affiliate Partner agrees to execute such further documents and to do such further acts, at no additional charge to Company, as may be necessary to perfect, register or enforce Affiliate Partner’s ownership of such rights, in whole or in part; provided however, that to the extent Affiliate Partner is required to take any actions on behalf of Company to perfect, register or enforce Company’s ownership of such rights after the consulting relationship between the two has ended, Affiliate Partner shall be entitled to a reasonable fee (including repayment of any expenses) as may be agreed between the parties.  To the extent applicable, Affiliate Partner shall promptly deliver to Company all source code associated with any software comprising the Work Product. 

    2. Work Product and Background Intellectual Property.  “Work Product” means any and all concepts, inventions (whether or not protected under patent laws), works of authorship, information, new or useful art, combinations, discoveries, formulae, algorithms, specifications, manufacturing techniques, technical developments, systems, computer architecture, artwork, software, programming, applets, scripts, designs, processes and methods of doing business, and any other media, materials and other tangible objects produced by Affiliate Partner in advertising, promoting, marketing, and selling the Products and Services.  However, Work Product does not include any Intellectual Property which may be contained in the categories set forth in the immediately preceding sentence, that was developed by Affiliate Partner prior to performance or independent of this Agreement (“Background Intellectual Property”).  Affiliate Partner retains all right, title and interest in and to any Background Intellectual Property.  However, to the extent Background Intellectual Property is incorporated into Work Product, Affiliate Partner hereby grants to Company a perpetual, fully paid royalty free, worldwide, non-exclusive license to use, prepare derivative works and otherwise fully exploit all or any portion of the Background Intellectual Property incorporated into the Work Product.  Notwithstanding the foregoing, Company may not exploit or use the Background Intellectual Property separate from the Work Product or attempt to derive the source code or reverse engineer the Background Intellectual Property.

    3. Limited License to Marketing Materials and Certain Company IP.  Company is, and shall be, the sole and exclusive owner of all right, title and interest in and to the Marketing Materials, including all Company IP therein.  Subject to and in accordance with the terms and conditions of this Agreement, Company grants Affiliate Partner a limited, non-exclusive, non-transferable and non-sublicensable license during the Term to use certain Marketing Materials, and Company IP that is included in such Marketing Materials, solely in connection with communications with current or prospective Customers in relation to the marketing, promotion and/or sale of the Products and Services pursuant to this Agreement in accordance with any written instructions, specifications, and/or guidelines provided by Company from time to time. Company grants no other right or license to any Company Materials or Company IP to Affiliate Partner, whether by implication, estoppel or otherwise, and all uses of the Company Marks, and all goodwill associated therewith, shall inure solely to the benefit of Company, and Company may terminate the foregoing license at any time, without cause, on written notice to Affiliate Partner.  Unless specifically authorized by Company in writing, Affiliate Partner shall use the Marketing Materials and/or Company IP only in the form provided by Company, without modification, and Affiliate Partner will maintain and use the Marketing Materials and/or Company IP in accordance with any written instructions and/or specifications provided by Company.  Except for the limited license provided in this Section 8.3, nothing contained in this Agreement shall be construed as granting Affiliate Partner any right, title or interest in or to any of the Company IP. Affiliate Partner acknowledges that Company owns all right, title and interest in, to and under all Marketing Materials and Company IP, and that Affiliate Partner shall not acquire any proprietary rights therein.  Any use by Affiliate Partner or any Representative of Affiliate Partner of any Company IP and all goodwill associated therewith shall inure to the benefit of Company. If Affiliate Partner acquires any rights in any Intellectual Property that is identical or similar to any Company IP, by operation of law or otherwise, Affiliate Partner shall and does hereby assign, at no additional cost, all such rights to Company and its successors, together with all associated goodwill in and applications and registrations for such Intellectual Property.

    4. Restrictions.  

      1. Affiliate Partner shall not market, promote, or sell Products and Services using any Company IP other than that which is included in Marketing Materials approved for use by the Affiliate Partner Marks without Company's written pre-approval in accordance with Section 8.3, and Affiliate Partner shall not use any Marketing Materials or Company IP (whether individually or in combination or in whole or in substantially similar part): (i) in or in connection with the advertising, promotion, marketing or distribution of any goods, services or technologies other than the Products and Services; (ii) as part of Affiliate Partner 's corporate or trade name or any domain name; (iii) in any way that may cause confusion, mistake or deception; or (iv) in any way that may dilute, tarnish or otherwise diminish the value and/or distinctiveness of the Company’s Trademarks or other Company IP, or jeopardize the reputation of or goodwill associated with the Products and Services, any Company IP, or the Company, or the validity or Company's ownership of the Company IP or the registrations therein.

      2. Affiliate Partner shall not at any time during or after the term, (i) use, register, or attempt to register in any jurisdiction any Trademark or other Intellectual Property that is identical to or substantially similar to any of the Company IP or that incorporates any of the Company IP in whole or in part, (ii) challenge, or cause, induce, authorize, or assist any Person to challenge, the validity of any Company IP or Company's ownership, use or registration of or rights in any of the Company IP, or (iii) take any action in derogation of Company's rights in the Company IP, including by using, licensing, or applying to register any Intellectual Property that is identical or similar to any of Company IP, or (iv) directly or indirectly engage in any unfair, unethical, misleading, or deceptive acts or practices that are or might be detrimental to the public or the goodwill or reputation of Company, any of the Products and Services, or any Company IP, including, without limitation, any dissemination, display or use of any false, misleading or deceptive representations, depictions, or materials for or in connection with any advertising, promotion, marketing, or distribution of any Products and Services.

  8. Confidentiality.  From time to time during the Term, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in writing, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”).  Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) is or was independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable law.  During the Term and for a period of twenty-four (24) months thereafter, the Disclosing Receiving Party shall:  (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any Person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.  The Receiving Party shall be responsible for any breach of this Section 9 caused by any of its Representatives.  At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall promptly return and/or destroy all Confidential Information and copies thereof that it has received under this Agreement.

  9. Term and Termination.

    1. Term.  The term of this Agreement (the “Term”) shall commence on the Effective Date and continue indefinitely until terminated pursuant to Section 10.2 below.

    2. Termination.  Either party may terminate this Agreement (a) without cause with thirty (30) days’ written Notice to the other party; or (b) effective immediately upon written Notice to the other party if the other party (i) fails to cure a material breach of this Agreement within ten (10) days of receipt of written notice from the terminating party specifying the material breach; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; (v) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (vi) is dissolved or liquidated.

    3. Effect of Termination.

      1. Upon termination of this Agreement, (i) Company will pay Affiliate Partner any Referral Fee earned in accordance with the terms and conditions set forth herein; (ii) Affiliate Partner will promptly deliver to Company all Marketing Materials, Confidential Information of Company, and documentation and information related to prospective Customers in Affiliate Partner’s possession; and (iii) both parties will (A) promptly return and/or destroy all Confidential Information and copies thereof that it has received under this Agreement, and (B) certify in writing to the other party that it has complied with the requirements of this clause.

      2. Termination of this Agreement will not affect any rights or obligations that are to survive the termination of this Agreement and were incurred by either party prior to termination.  Except as provided otherwise in this Section 10.3, the party terminating this Agreement shall not be liable to the other party for damages of any kind (whether direct or indirect) incurred by the other party by reason of the termination of this Agreement.  Termination of this Agreement will not constitute a waiver of any of the terminating party’s rights, remedies or defenses under this Agreement, at law, in equity or otherwise.  In no event shall Company be liable for any Affiliate Partner Personnel termination costs arising from the termination of this Agreement.

  10. Representations, Warranties, and Certain Covenants.

    1. Mutual Representations, Warranties and Covenants.  Each party represents, warrants and covenants to the other that:  (a) it is a legal entity duly organized, validly existing and in good standing in the jurisdiction of its organization; (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement, except where the failure to be so qualified, in the aggregate, could not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement; (c) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement, and to perform its obligations under this Agreement; (d) it has not, and during the Term will not, enter into any oral or written contract or negotiations with any third party that would impair the rights granted to the other party under this Agreement, or limit the effectiveness of this Agreement, nor is it aware of any claims or actions that may limit or impair any of the rights granted to the other party hereunder; (e) the execution of this Agreement by its Representative whose signature is set forth at the end hereof and the delivery of this Agreement by the party have been duly authorized by all necessary corporate action of the party; (f) this Agreement has been executed and delivered by such party and (assuming due authorization, execution and delivery by the other party) constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (g) it is now and through the Term shall remain in compliance with all laws applicable to the performance of its obligations under this Agreement except to the extent that such failure could not, in the aggregate, reasonably be expected to have a material adverse effect on the other party’s ability to comply with its obligations under this Agreement.

    2. Affiliate Partner Representations, Warranties and Covenants.  Affiliate Partner represents, warrants and covenants to Company that: (a) it has, or shall obtain, and shall maintain in full force and effect during the Term all necessary licenses, permits, consents and authorizations as may be necessary for the execution of this Agreement and to carry out the transactions and activities contemplated hereby; and (b) it shall comply with, and ensure that all Affiliate Partner Personnel comply with, all specifications, rules, regulations and policies of Company that are communicated to Affiliate Partner in writing.

    3. Company Representations, Warranties and Covenants.  Company represents, warrants and covenants to Affiliate Partner that it has, or shall obtain, and shall maintain throughout the Term all rights, licenses and consents required in connection with this Agreement and the transactions and activities contemplated herein, including any such right or licenses required to lawfully use, and to authorize Affiliate Partner to use, any Company IP or Company Materials provided to Affiliate Partner for use in connection with the transactions and activities contemplated by this Agreement.

    4. NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE.  EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 11.4, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, ANY AND ALL OF WHICH ARE EXPRESSLY DISCLAIMED; AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT.

  11. Indemnification.

    1. Affiliate Partner Indemnification Obligations.  Affiliate Partner shall defend, indemnify and hold harmless Company, and its officers, directors, employees, agents, successors and permitted assigns (collectively, “Company Indemnified Party”), from and against any and all Losses arising out or resulting from any Claim alleging:  (a) breach of any obligations set forth in this Agreement by Company, Affiliate Partner or any or of their respective officers, directors, managers, members, employees, contractors or other agents (“Personnel”); (b) negligence or more culpable act or omission of Company, Affiliate Partner, and/or their respective Personnel, as applicable (including any recklessness or willful misconduct), in connection with the performance of its obligations under this Agreement; or (c) that any of the Products and Services, or Company’s, Affiliate Partner’s or any third party’s receipt or use thereof, infringes any Intellectual Property of a third party arising under the laws of the United States or any other jurisdiction.  For purposes of this Agreement, the term “Losses” means losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees, fees and costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers.

    2. Indemnification Procedures.  A party seeking indemnification under this Section 12 (the “Indemnified Party”) shall give the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation in the defense of such claim.  The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest.  The Indemnified Party shall have the right to participate in the defense at its own expense.

    3. EXCLUSIVE REMEDY.  THIS SECTION 12 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 12.

  12. Limitation of Liability.  COMPANY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE COMMISSIONS DUE AND PAYABLE BY COMPANY TO Affiliate PARTNER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM.  NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, EXCEPT WITH RESPECT TO Affiliate PARTNER’S LIABILITY FOR INDEMNIFICATION OR LIABILITY FOR BREACH OF CONFIDENTIALITY, INFRINGEMENT OR MISAPPROPRIATION OF COMPANY IP, AS APPLICABLE, OR Affiliate PARTNER’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR ANY CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  13. Miscellaneous.

    1. Entire Agreement.  This Agreement, including the related schedules attached hereto, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

    2. Survival.  Subject to the limitations and other provisions of this Agreement, Section 9 (Confidentiality), Section 10 (Term; Termination), Section 12 (Indemnification), Section 13 (Limitation of Liability), and Section 14 (Miscellaneous), as well as any other provision that, in order to give proper effect to its intent, should survive such termination, shall survive the termination of this Agreement for the period specified therein, or indefinitely after such termination if nothing is specified.

    3. Notices.  All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing.  All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid), in each case at the address or email address set forth on the signature page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section).  Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 14.3.

    4. Severability.  If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

    5. Amendment and Modification; Wavier.  No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized Representative of each party.  No waiver under this Agreement is effective unless it is in writing and signed by an authorized Representative of the party waiving its right.  Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.  No failure or delay in exercising any right, remedy, power or privilege, or in enforcing any condition under this Agreement, constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement.

    6. Cumulative Remedies.  Except as otherwise provided herein, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.

    7. Equitable Remedies.  Each party acknowledges and agrees that (a) a breach or threatened breach by such party of any of its obligations under this Agreement would give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy; and (b) in the event of a breach or threatened breach by such party of any such obligations, the other party shall, in addition to any and all other rights and remedies that may be available to such party at law, in equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.  Each party agrees that such party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case consistent with the terms of this Section 14.7.

    8. Assignment.  Neither party may assign, transfer or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other party; provided, however, that Company may assign this Agreement to a successor-in-interest by consolidation, merger or operation of law or to a purchaser of all or substantially all of Company’s assets.  No assignment shall relieve the assigning party of any of its obligations hereunder.  Any attempted assignment, transfer or other conveyance in violation of the foregoing shall be null and void.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

    9. No Third-Party Beneficiaries.  This Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.   Notwithstanding the foregoing, the parties hereby designate Company Indemnified Parties as third-party beneficiaries of Section 12 having the right to enforce Section 12.

    10. Choice of Law; Venue.  This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by, and construed in accordance with, the laws of the State of Florida without giving effect to any conflict of laws provisions thereof.  Affiliate Partner unconditionally agrees that it will not, directly or indirectly, bring or be a party to any Claim against Company or any other Company Indemnified Party.  Notwithstanding the foregoing, each party irrevocably and unconditionally agrees that it will not commence any Claim of any kind whatsoever against the other party in any way arising from or relating to this Agreement and the transactions contemplated hereby in any forum other than the United States District Court for the Middle District of Florida or the courts of the State of Florida sitting in Hillsborough County, and any appellate court thereof.  Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such Claim only in the United States District Court for the Middle District of Florida or the courts of the State of Florida sitting in Hillsborough County.  Each party agrees that a final judgment in any such Claim is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law.

    11. Waiver of Jury Trial.  Each party acknowledges and agrees that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law, in equity or otherwise, arising out of or relating to this Agreement or the transactions contemplated hereby.

    12. Counterparts.  This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.  A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

By clicking the "Submit Application" button located at: Affiliate Partner agrees to the terms and conditions setforth in this Agreement.