NON-EXCLUSIVE AFFILIATE AGREEMENT
Last Modified: February 8th, 2021
THIS NON-EXCLUSIVE AFFILIATE AGREEMENT (“Agreement”) by and between Kyle M Flynn, a Maryland partnership company d/b/a/ DMV Labs (the “Company”), and the individual or entity (“Affiliate”) which acknowledges acceptance by clicking “I Accept” as stated below. (Company and Affiliate each, a “Party” and, collectively, the “Parties”).
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE "I ACCEPT” BUTTON BELOW OR BY ACCESSING THE AFFILIATE PORTAL (the "Effective Date"). BY CLICKING ON THE "I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE AFFILIATE PORTAL YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE "I DECLINE” BUTTON BELOW. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE CLOUD SERVICES.
The Parties agree as follows:
1. Purpose of Agreement. The Company is in the business of manufacturing, developing, marketing, distributing and selling various dietary supplements, food, and other items. Under the terms of this Agreement, Affiliate will serve as a non-exclusive, independent contractor sales representative for the Company in the territories listed on Schedule A (the “Territory”) for the particular products described in Exhibit A (the “Product” or “Products”) and, as applicable, as a non-exclusive, independent contractor Master Affiliate, as defined in Section 6 below. Affiliate shall devote such time and attention as Affiliate feels is necessary to perform the marketing services contemplated hereunder during the Term of this Agreement. Company reserves the right to contract with other sales representatives in the Territory and to sell the Products itself in the Territory.
2. Additional Products. The Company may amend Exhibit A upon notice to Affiliate at any time to include additional products, and such additional products will thereafter be considered “Products'' within the meaning, and subject to the terms, of this Agreement. Additional products may be added by the Company through e-mail correspondence or posts to the affiliates only Facebook Group.
3. Term; Termination. The term of this Agreement (the “Term”) shall be from the date of its execution and shall continue on a month to month basis, subject to termination by either Party on twenty-four (24) hours’ prior written notice, which termination shall be immediately effective upon the expiration of the twenty-four (24) hour period. The Company and Affiliate -2- 46024379-v1 shall each have the right to immediately terminate this Agreement at any time if the other Party breaches any of the material terms or provisions of this Agreement and fails to cure such breach within ten (10) calendar days of receipt of written notice from the non-breaching Party. This Agreement shall automatically terminate upon the death or disability of Affiliate. Except in the event of termination for breach, upon termination of this Agreement, the Company shall be responsible for paying Affiliate Commissions (defined below) earned on amounts collected from Affiliate’s accounts within the Territory from Purchase Orders (defined below) accepted through the date of termination.
4. Purchase Orders. If a customer desires to place an order for the Product(s) (each, a “Purchase Order”), Affiliate shall assist the customer in filling out the Company’s standard order form and then Affiliate shall enter the Purchase Order into the Company’s online ordering system. Each customer is required to have their own unique account which includes the customer’s full name, email address, physical address, and any other information about the customer that is required to submit a Purchase Order. Alternatively, customers may place orders directly by using the link provided by Affiliate, which orders must also be placed using a unique account for the customer that includes the customer’s full name, email address, physical address, and any other information about the customer that is required to submit a Purchase Order. Affiliate shall notify each customer that the Company may elect to accept or reject a Purchase Order in its sole and absolute discretion. All accepted Purchase Orders will be fulfilled directly by the Company to the customer.
5. Commissions Payable.
(a) Subject to Section 11, the Company shall pay to Affiliate a commission (the “Commission”) for Product sales made to accounts within the Territory (based on accepted Purchase Orders) from which Affiliate has secured Purchase Orders during the Term in accordance with the commission chart(s) set forth within the Affiliate’s account. Commission payouts are based solely on the price of Products sold and not reflective of any shipping and/or taxes. As a condition to receiving commission payments, each Affiliate that is a U.S. resident must submit an IRS W-9 form to Company with Affiliate’s Social Security Number or Business’s tax identification number in accordance with any further instructions provided by Company. Additionally, each Affiliate must execute this Agreement and submit a verified PayPal account for commission payouts (Section 5(e)).
(b) Any Affiliate in Canada that is registered under Part IX of the Excise Tax Act (“Registered Canadian Affiliate”) and is required to charge the Goods & Services Tax, Harmonized Sales Tax or Provincial Sales Tax (“Canadian Tax”) on the Commission, must advise the Company of this requirement. Prior to the Company paying Canadian Tax to a Registered Canadian Affiliate, said Affiliate must provide the Company, in writing to firstname.lastname@example.org, with the correct amount of Canadian Tax to be levied and all the information that the Company requires to claim an Input Tax Credit (“ITC”) for any Canadian Tax paid to the Registered Canadian Affiliate.
(c) No Commissions shall be payable for Purchase Orders which the Company has accepted, but which it then elects for any reason at its sole and absolute discretion to cancel or -3- 46024379-v1 rescind, whether or not it has a legal right to cancel such Purchase Order. Notwithstanding anything to the contrary herein, all Commissions paid with respect to Purchase Orders that subsequently are cancelled, refunded, charged back or for which the Products are returned shall be automatically deducted from the next Commission payment(s) until fully recouped by the Company. In addition, if a Purchase Order is cancelled, refunded, charged back or if Products are returned following the expiration or termination of this Agreement for any reason, Company shall notify Affiliate in writing of any Commissions to be refunded to Company. Affiliate shall refund any such Commissions to Company within ten (10) calendar days of such notice. If Affiliate fails to return such Commissions within such ten (10) calendar day period, then Company shall have the right to take legal action against Affiliate and in addition to any amounts owed hereunder, Affiliate will reimburse the Company for all costs of collection, attorneys’ fees and expenses in connection therewith. In addition, the Company shall have the option to require Affiliate to keep a payment method on file with the Company. If the Company requests that Affiliate keep a payment method on file, then the Company may charge Affiliate’s payment method on file with Company if Affiliate fails to refund any such Commissions.
(d) Special commission rates may be applied from time to time at the sole discretion of the Company to consummate specific sales transactions or promotions.
(e) Each month will be broken into four (4) payment cycles as follows: (i) Cycle 1: 1st-8th day of the month; (ii) Cycle 2: 9th-16th day of the month; (iii) Cycle 3: 17th-24th day of the month; and (iv) Cycle 4: 25th-last day of the month. Commissions shall be paid by Company to Affiliate no later than four (4) calendar days following the end of the applicable payment cycle in which the Company receives payment for Purchase Orders submitted by Affiliate or through Affiliate’s sales link for customers within the Territory. Commissions payable hereunder shall be based solely upon actual amounts collected from (not billed to) the accounts. All Commission payments shall be made through PayPal to the PayPal address designated by Affiliate. It is Affiliate’s responsibility to provide an accurate PayPal address. The Company will not be liable for any Commissions which are not received or are delayed as a result of the Affiliate’s failure to provide accurate PayPal information. Affiliate agrees to notify the Company immediately in writing with any changes to Affiliate’s account information. Changes to Affiliate’s PayPal account or other information may require reverification and as such incur the withholding of Commission payments. All Commission payouts will expire after thirty (30) calendar days if Affiliate’s PayPal information remains unverified.
(f) The Commissions which the Company will pay to Affiliate hereunder shall be the exclusive compensation paid by the Company to Affiliate for the services provided by Affiliate hereunder.
(g) Company may, from time to time, offer bonuses to Affiliate or an employee of Affiliate who achieves certain sales milestones in a given time period. Company retains the sole and absolute discretion to determine the: (i) sales milestones required to be satisfied; (ii) time period; (iii) bonus type and amount, and (iv) the Affiliate or employees of Affiliate who qualify for any bonus. -4- 46024379-v1
(h) Affiliate represents and warrants that Affiliate is not a current employee of an existing affiliate of the Company (“Existing Affiliate”). If Affiliate is an employee of an Existing Affiliate, then such Existing Affiliate shall be considered a referral partner of the Company and all Commissions otherwise payable to Affiliate shall be paid to the Existing Affiliate. Affiliate acknowledges and agrees that the Company shall have no liability whatsoever to Affiliate if Affiliate is a current employee of an Existing Affiliate, and Affiliate forfeits any Commissions if it is an employee of an Existing Affiliate. Further, if Affiliate falsifies information resulting in Commissions belonging to an Existing Affiliate being paid to Affiliate, then all such Commission received by Affiliate shall be promptly returned to the Company.
6. Master Affiliate Program. Each Affiliate has the opportunity to participate in Company’s Master Affiliate Program through the Affiliate’s online portal. If this option is elected, such Affiliate (“Master Affiliate”) will be paid a commission (“Referral Commission”) for sales made by each new Affiliate that Master Affiliate refers to Company and which Company approves as an Affiliate (each, a “Referral Affiliate”). Company shall have the sole and absolute right to determine whether any referral will be approved as a Referral Affiliate. Referral Commissions shall equal five percent (5%) of the price of Products sold by each Referral Affiliate referred by Master Affiliate and approved by Company, excluding any shipping and/or taxes payable on such sales. Master Affiliates will be provided two dashboards within their respective portal, one for its own Product sales, and one for Referral Affiliates. Master Affiliate shall be responsible for providing any potential Referral Affiliate with the referral link provided by Company, which will be used to track potential Referral Affiliates that Master Affiliate refers to Company for purposes of determining Master Affiliate’s Referral Commissions. Master Affiliate shall not use any paid advertising in connection with Master Affiliate’s referral link. Master Affiliate is solely and exclusively responsible for directing any potential Referral Affiliate to the website in order to apply to become a Referral Affiliate. Master Affiliate shall only be entitled to, and shall only receive, Referral Commissions for sales made by Referral Affiliates that Master Affiliate directly refers to Company and which are approved by Company, and not sales made by any additional Affiliates that Master Affiliate’s Referral Affiliates may refer to Company. Master Affiliate Referral Commissions shall be paid in accordance with the schedule set forth in Section 5(e) above. Master Affiliate may, but is not obligated to, use a separate PayPal account and/or W-9 for Referral Commissions. Master Affiliate commissions shall not be eligible for sales contests unless specifically provided for by Company in Company’s sole and absolute discretion, and Master Affiliate’s Referral Commissions shall be kept separate and apart from other Commissions earned from sales of Products in any sales tracking lists available to Affiliates. Master Affiliate shall provide reasonable sales support to all of Master Affiliate’s Referral Affiliates. All obligations undertaken by, and all representations and warranties provided by Affiliates in this Agreement apply equally to Master Affiliates. Special commission rates may be applied from time to time at the sole discretion of the Company to consummate specific sales transactions or promotions.
7. Marketing Materials. The Company may provide Affiliate with Product samples, marketing, and promotion materials that can be used to demonstrate and explain the Products, as the Company deems appropriate (collectively, the “Marketing Materials”). Upon termination or expiration of this Agreement, or at any time upon the request of the Company, Affiliate shall immediately return to the Company the Marketing Materials in Affiliate’s possession or control. Affiliate agrees that if the Company notifies Affiliate that the Company has changed its Marketing -5- 46024379-v1 Materials, Affiliate shall promptly cease all use of the prior Marketing Materials. Affiliate further agrees to indemnify the Company from any and all claims and losses resulting from Affiliate’s failure to cease using such prior Marketing Materials. 8. Obligations of Affiliate. During the Term, Affiliate shall:
(a) Use its best efforts to promote and market the Products to accounts within the Territory;
(b) Use best efforts in informing and directing customers purchasing the Products on using Company’s website for customer support located here: https://dmv-labs.com/;
(c) Maintain the highest professional and ethical standards in all interactions, including all sales transactions with customers and Company;
(d) Maintain professionally reasonable positive and consistent communications with the Company as needed in a commercially reasonable manner;
(e) Use best efforts to instruct or train other team members in the fulfillment of their duties as it relates to the terms of this Agreement and transactions that occur hereunder;
(f) Accurately describe the business, Products, and affairs of the Company;
(g) Enter any Purchase Order for the Products promptly to the Company with the understanding that such orders will not be considered binding until expressly accepted by the Company;
(h) Offer the Products to accounts within the Territory at such prices as shall be established from time to time by the Company within the Affiliate’s dashboard;
(i) Inform the Company of any operational difficulties being experienced or anticipated;
(j) Offer to the Company ideas of ways to improve and make effective the marketing activities;
(k) Not use the Company’s name or any trade name used by the Company as part of Affiliate’s firm, trade or corporate name without the express written consent of the Company;
(l) Not purchase the Products from the Company with the intent to resell them; and
(m) If they are a Registered Canadian Affiliate, promptly advise the Company, in writing, if they become de-registered under Part IX of the Excise Tax Act. -6- 46024379-v1
9. Final Approval Authority. All Purchase Orders solicited by Affiliate (including the terms thereof) for the Products shall be subject to final approval and acceptance by the Company, in its sole and absolute discretion. Affiliate is not authorized to enter into any binding contract or commitment as agent for the Company. Affiliate shall not offer discounts, markdowns, return authorizations or adjustments to accounts within the Territory without the prior consent of the Company.
10. Expenses of Affiliate. Affiliate shall be solely responsible for the payment of all expenses incurred by it in discharging its responsibilities and obligations under this Agreement including, but not limited to, automobile and travel expenses, food, lodging, telephone expenses, occupational and business licenses, insurance, mailing, copying, etc.
11. Independent Contractor. Affiliate shall be considered an independent contractor for all purposes and shall not be deemed to be an employee or agent of the Company for any reason. Affiliate shall have the general ability and right to determine the manner in which the services described herein shall be performed and shall not be required to adhere to any specific working hours. Affiliate shall accept full and exclusive liability and responsibility for the payment of any and all taxes, contributions or other sums payable for unemployment compensation or insurance and all age retirement benefits, as well as all other Federal, State and local income and payroll taxes, as well as Canadian Tax, payable by reason of Affiliate’s receipt of Commissions from the Company and for the preparation and filing of all related tax returns.
12. Ownership and Confidentiality of Proprietary Information.
(a) Affiliate acknowledges and agrees that the Company has expended significant time and expense to develop the Products and unique marketing program by which the Products are to be sold. Affiliate acknowledges that in connection with its duties under this Agreement, Affiliate shall have access to, receive and be entrusted with what Affiliate and the Company acknowledge are trade secrets and confidential information that are the exclusive property of the Company. For purposes of this Agreement, “Confidential Information” means all information of any kind, type or nature (written, stored on magnetic or other media or oral) which at any time during the term of this Agreement is or has been compiled, prepared, devised, developed, designed, discovered or otherwise learned of by Affiliate in connection with this Agreement, including, without limitation,
(i) all contract terms, price lists, pricing information, sales presentations, marketing plans, trade secrets, methods, techniques, processes, and confidential trade knowledge and computer programs of the Company and/or its affiliates;
(ii) any work product of the Company and/or its affiliates;
(iii) prospective and current customers, licensors, licensees, service providers, vendors and distributors of the Company and/or its affiliates;
(iv) strategies, budgets, business plans, financial statements, projects and other financial information of the Company and/or its affiliates;
(v) know-how, financial, customer, demographic and other information concerning the methods of development and operation of the Company and/or its affiliates;
(vi) research, development, designs, code, formulas, patterns, product formulations, compilations, devices, current and proposed products, platforms or services, marketing, promotions, sales and other business plans of the Company and/or its affiliates; and
(vii) information concerning the personal and/or business affairs of the Company’s executives, -7- 46024379-v1 employees, officers, managers, members and directors. Notwithstanding the foregoing, any such information which is now or becomes known to the public other than by disclosure in violation of this Agreement or any similar confidentiality agreement shall not be deemed to be Confidential Information if it was: (1) previously known or available to Affiliate by or from a third party source who directly or indirectly did not violate any confidentiality obligation to the Company; or (2) obtainable by a reasonably diligent businessperson from trade publications or other readily available and public sources of information.
(b) Affiliate shall not, at any time from and after the date hereof and continuing after termination or expiration of this Agreement, directly or indirectly, disclose, reveal or permit access to all or any portion of the Confidential Information, or any tangible expressions or embodiments thereof (including any facilities, apparatus or equipment which embody or employ all or any portion of the Confidential Information), to any individual, corporation, limited liability company, partnership, trust or other entity (collectively, “Person”) without the written consent of the Company, except (i) to Affiliate’s legal counsel or accountants who have a “need to know” such information for the purpose of evaluating and/or enforcing Affiliate’s rights under this Agreement (provided that such legal counsel agrees to abide by the confidentiality provisions of this Agreement); and (ii) as required by law. In addition, Affiliate shall not publish, authorize or cause to be published or otherwise assist or cooperate in the preparation or presentation of, any book, blog, post, Tweet, article, interview, program or other production or publication of any kind, whether fiction or non-fiction (including, without limitation, by television, radio, newspaper or interactive media such as Facebook, Twitter or any other interactive social network or personal blog) that includes or makes use of any material or information that becomes available to Affiliate, whether or not related to this Agreement, concerning the Confidential Information and/or any executives, employees, officers, managers, members and directors of the Company or its affiliates.
(c) None of the covenants, agreements or actions taken by Affiliate in furtherance of its duties hereunder or otherwise shall in any way create, establish or provide Affiliate or any other person or entity with any proprietary or other ownership rights with respect to any Confidential Information, or any actual or potential customer accounts, or relationships with accounts established pursuant hereto.
(d) Without the prior written consent of the Company, Affiliate shall not, directly or indirectly, use or exploit the Confidential Information at any time from and after the date hereof and after termination of this Agreement for any purpose. Any gain or profit of any kind or nature obtained or derived by Affiliate from the use or exploitation of the Confidential Information shall be held in trust by Affiliate for the express benefit of the Company and shall be remitted thereby to the Company, unless such use or exploitation did not violate the terms of this Agreement.
(e) Affiliate acknowledges and agrees that the uses of Confidential Information specifically prohibited hereunder include, without limitation, the following: (i) using any Confidential Information to induce or attempt to induce any Person who is either a customer, licensor, licensee, distributor, service provider, client or talent relationship of the Company or its affiliates or who was being actively solicited by the Company or its affiliates at any time during the Term of this Agreement, to cease doing business or not to commence doing business in whole -8- 46024379-v1 or in part with the Company or its affiliates; or (ii) using any Confidential Information to solicit or assist in the solicitation of the business of any customer, licensor, licensee, distributor, service provider, client or talent relationship for any products or services competing with those products and services offered and sold by the Company or its affiliates at any time during which Affiliate provides service to the Company.
(f) In the event that Affiliate is legally requested or required to disclose any Confidential Information by process of law, Affiliate shall promptly notify the Company in writing of such request or requirement prior to disclosure so that the Company may seek an appropriate protective order and/or limit the scope of the disclosure.
(g) All records, files, drawings, documents, equipment and other tangible items, wherever located, relating in any way to the Confidential Information or otherwise to the business of the Company or its affiliates, which Affiliate prepares, uses, or encounters, shall be and remain the Company’s sole and exclusive property and shall be included in the Confidential Information.
(h) Affiliate acknowledges and agrees that monetary damages may be insufficient in the event of a breach of this Section 12, and the Company may seek injunctive relief to enforce this Agreement without proof of actual damages or irreparable injury, the latter of which, Affiliate agrees is presumed in the event of such breach.
13. Noncompetition; Interference with Business; Disparaging Statements. During the Term and for a period of two (2) years after the termination or expiration of this Agreement for any reason, Affiliate agrees that Affiliate will not, directly or indirectly, on Affiliate’s own behalf or as a partner, officer, director, member, manager, stockholder, employee, agent or consultant of any other person or entity, interfere with the Company’s business by inducing, persuading or attempting to persuade any accounts within the Territory to discontinue their business with the Company.
14. Remedies. Affiliate acknowledges that if Affiliate breaches any of the provisions of Sections 12 or 13 of this Agreement, the Company will suffer irreparable harm for which monetary damages alone will not be a sufficient remedy, and that the Company shall be entitled to seek, through arbitration as provided in Section 20(c) or in a court of law or equity as provided in Section 20(b), injunctive relief, specific performance or any other form of equitable relief to remedy a breach or threatened breach of this Agreement by Affiliate and/or to enforce the provisions of this Agreement, in addition to any and all other remedies that the Company may have. The Company shall be entitled to recover from Affiliate any costs (including attorneys’ fees, costs and expenses) incurred to enforce its rights or collect any amounts due to it hereunder.
15. Right of Offset. The Company shall have the right to offset against any amounts due to Affiliate hereunder damages and reasonable costs (including attorneys’ fees, costs, expenses, interest, fines and penalties) incurred by the Company upon a breach by Affiliate of any of Affiliate’s obligations hereunder or as a result of any other amounts owed by Affiliate to the Company (e.g., failure to pay for Products ordered by Affiliate for personal use). Any offset made in accordance with the provisions of this Section 15 shall be in addition to any other remedies the Company may have at law or in equity and shall be made by written notice from the Company to -9- 46024379-v1 Affiliate stating the cause and the amount of the offset and may, at the option of the Company, be applied against any payment then or thereafter becoming due to Affiliate from the Company.
16. Indemnification. Affiliate shall indemnify, hold harmless, and defend the Company and each of its officers, directors, members, managers, executives, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, resulting from the breach or nonfulfillment by Affiliate of any of its obligations hereunder, including without limitation the obligations set forth in Section 5(c) and Section 8(m) .
17. Return of Property. Upon the termination of this Agreement or whenever requested by the Company, Affiliate shall return to the Company all property of the Company and its affiliates in Affiliate’s possession or under Affiliate’s direct or indirect control, including, without limitation, all Confidential Information, notebooks and other materials, documents, diaries, calendars and data of or relating to the Company or any affiliate, whether printed, typed, written or on any source of computer media.
18. Nondisparagement. During the Term of this Agreement and at all times thereafter, Affiliate shall not make any statement, written or verbal, to any party reasonably likely to be harmful or injurious to the goodwill, reputation or business standing of the Company or any of its members, managers, officers, directors, agents, employees or executives.
19. Affiliate’s License Grant and Right of Publicity Release. Affiliate hereby grants to Company a royalty free, irrevocable, worldwide right and license to use photographs, testimonials, reviews, videos, trademarks, service marks, and such other materials (collectively, the “Affiliate Materials”) as may be requested by Company or provided or made available by Affiliate to Company including, but not limited to, Affiliate Materials featuring customers of the Products. Affiliate shall obtain from all customers or other individuals appearing in the Affiliate Materials written agreements, permission or releases on forms to be supplied by Company. Affiliate shall provide copies of all such agreements, permissions, and releases (collectively, “Releases”) to Company promptly upon Company’s request for same. Affiliate shall indemnify, defend and hold harmless Company from and against any and all claims, causes of actions, losses, liabilities, damages, costs, fees, and expenses (including without limitation reasonable attorneys’ fees, costs and expenses) as a result of Affiliate’s failure to obtain any such Releases. Affiliate also acknowledges that Company may at times videotape, photograph, and otherwise reproduce via analog or digital means (collectively, “Recording(s)”) Affiliate’s image, likeness and/or voice, and Affiliate agrees that Company has the right to transfer and assign all rights associated with such recording, including without limitation the right of publicity. Affiliate agrees that Company and any assignee may use any Recording or Affiliate Material in any written material, art work, image, video or website to advertise Company and/or its Products or its assignee’s business, without advance notice, and without right to compensation or accreditation.
20. Miscellaneous. -10- 46024379-v1
(a) Notices. All notices and other communications given or made in connection with this Agreement shall be in writing and shall be deemed to have been given or made when given or made if such notice or communication is in writing and delivered personally, sent by commercial carrier or registered or certified mail (postage prepaid) or transmitted by electronic mail to the applicable Party at the addresses and numbers (or at such other addresses as shall be furnished by the Parties by like notice) as follows: (i) if to Affiliate, to the address and numbers provided in Affiliate’s account information; and (ii) if to the Company: DMV Labs, 1410 Flatwood Ct Crofton, MD 21114, Email: email@example.com.
(b) Governing Law; Venue. This Agreement shall be construed under and in accordance with the laws of the State of Maryland without regards to any choice of law or conflicts of laws principles. If, for any reason, a dispute is not subject to arbitration as provided in Section 20
(c) below, then any suit, action or proceeding arising out of or related to this Agreement shall be exclusively brought in the federal or state courts located in County of Travis, State of Texas, and the Parties hereby forever waive any challenge to said courts’ exclusive personal jurisdiction and venue.
(d) Arbitration; Dispute Resolution. Any claim or controversy between the Parties shall be resolved through binding arbitration before a single arbitrator assigned by JAMS, Inc. (“JAMS”) with at least ten (10) years’ experience in commercial disputes. Any arbitration hereunder shall be conducted under the rules/clauses of JAMS as modified herein and shall take place in Austin, Texas. All arbitration proceedings shall be confidential. Neither Party shall disclose any information about the evidence produced by the other Party in the arbitration proceedings except in the course of judicial, regulatory, or arbitration proceedings, or as may be demanded by any government authority. Before making any disclosure permitted by the preceding sentence, the disclosing Party shall give the other Party reasonable advance written notice of the intended disclosure and an opportunity to prevent disclosure. Only evidence that is directly relevant to the issues may be presented the arbitration. The arbitrator shall apply Texas law and shall have authority to award any remedy or relief that a court of competent jurisdiction could grant in conformity to applicable law (including without limitation injunctive relief), except punitive damages. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of this Agreement and this arbitration provision. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this Agreement and whether a non-signatory to this Agreement can enforce this provision against either Party. Any arbitration award shall be accompanied by a written statement containing a summary of the issues in controversy, a description of the award, and an explanation of the reasons for the award. The prevailing Party shall receive reimbursement of reasonable outside attorneys’ fees, expenses and its costs. This arbitration provision sets forth the terms and conditions of the Parties’ agreement to final and binding confidential arbitration and is governed by and enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended.
(e) Limitation on Liability. Notwithstanding anything in this Agreement to the contrary, in no event shall any of the Company’s aggregate liability for all claims, damages, -11- 46024379-v1 lawsuits, losses and causes of action arising under or relating to this Agreement (whether in contract, tort, warranty or otherwise) exceed the sum of all monies paid or payable to Affiliate pursuant to this Agreement during the three (3) month period preceding the date that the most recent claim, damage, lawsuit, loss or cause of action arose.
(f) Compliance Acknowledgement.
i. Affiliate agrees to comply with all laws and regulations of the jurisdiction in which Affiliate promotes the Products. All promotional efforts and material must be truthful, non-deceptive and non-misleading. Affiliate is expected to be aware of and comply with any local regulations governing their promotional efforts, regardless of their citizenship or location.
ii. Affiliate acknowledges that the promotion of health and beauty offers is subject to certain restrictions including, but not limited to, prohibitions against promoting any product as a treatment or “cure” for any disease or health concern. Affiliates should be aware that promoting any non-medicinal supplement, either oral or topical, as a means to diagnose, treat, or cure any disease is prohibited. Affiliate shall make no health claims that cannot be substantiated by valid and reliable scientific evidence, and, to the extent Affiliate makes a health claim, Affiliate should cite the relevant scientific evidence substantiating and describing the health benefits of the product or ingredient for which the health-related claim is made. Affiliate shall make no weight-loss claims that infer that users can lose more than two pounds (2 lbs.) per week without lifestyle or behavioral changes. Affiliate shall not use misleading or deceptive “Before/After” pictures that are not indicative of actual results from usage of the particular product or ingredient being promoted, and should clearly and conspicuously disclose the time elapsed between any Before/After images used. Affiliate must not use any images for which they do not have commercial rights to use in their promotional efforts.
iii. Affiliate shall not use product testimonials without the written consent of the user, and shall include appropriate and legally-compliant disclaimers when users have been compensated for providing a testimonial as well as clear and conspicuous disclaimers conveying the message that results will vary. In no case should any testimonial be used in promotion where the quoted statement makes health claims that are prohibited or cannot be substantiated with valid and reliable scientific evidence. Affiliate shall not use expert or professional testimonials of non-licensed medical professionals. Affiliate is responsible for determining the accuracy and source of any testimonial used in their promotional activities.
iv. Affiliate shall avoid using trademarks of competing products for comparison purposes without clear disclosures that the competing product is not associated with the promotional activities of Affiliate or the product being promoted. Affiliate shall avoid making any factual statements about competing products that could be construed as inaccurate, misleading, or defamatory. Affiliate shall not use any “bait and switch” advertising to promote the sale of a product different from that which is advertised or promoted.
v. Affiliate shall not participate in any paid, sponsored or promoted advertising in connection with Affiliate’s services under this Agreement. -12- 46024379-v1
vi. Affiliate shall insure that all pricing is correct and reflects the price for which customers may purchase the product promoted. Affiliate shall not use incorrect or expired discount, coupon, or rebate codes. Affiliate shall not advertise artificial or inaccurate scarcity or limited availability of products where no such limitation exists.
vii. Affiliate shall avoid promoting products or services to children under the age of 18 within the United States, or under the age of majority in any country that regulates the importation or sale of health or beauty supplements to customers under the age of 18.
viii. Affiliate represents and warrants that he/she/it shall comply with any and all state and federal laws and regulations governing the collection of payment card information and the processing of payment card transactions. Affiliate further represents and warrants that he/she/it shall fully comply with all security and other standards adopted by the Payment Card Industry Security Council (commonly referred to as “PCI”).
ix. Compliance with the above practices is the sole responsibility of Affiliate. Failure to abide by these practices is grounds for termination of this Agreement. If you should have any questions or need clarification on any of these policies, contact your Company representative prior to any promotional activities. For further information and guidelines on the promotion of the Products, you may visit http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf.
(f) Severability. If any provision of this Agreement (other than a provision relating to any payment obligation) is held by the arbitrator or, if proper, a court of competent jurisdiction to be contrary to law, then the remaining provisions of this Agreement or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law.
(g) Binding Effect and Assignment. This Agreement binds and benefits the Parties and their respective permitted successors and assigns. Affiliate may not assign it rights or obligations under this Agreement to any third party without the prior written consent of the Company. The Company shall have the right to freely assign this Agreement.
(h) Waivers. The Parties may waive any provision of this Agreement only by a writing signed by the Party subject to such provision and intended to be bound by the waiver. A Party is not prevented from enforcing any right, remedy or condition in the Party’s favor because of any failure or delay in exercising any right or remedy or in requiring satisfaction of any condition, except to the extent that the Party specifically waives the same in writing. A written waiver given for one matter or occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver for any other matter or occasion. Any enumeration of a Party’s rights and remedies in this Agreement is not intended to be exclusive, and a Party’s rights and remedies are intended to be cumulative to the extent permitted by law and -13- 46024379-v1 include any rights and, except as expressly provided herein, remedies authorized in law or in equity.
(i) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto, and nothing herein expressed or implied shall give or be construed to give to any person or entity, other than the Parties hereto, any legal or equitable rights hereunder.
(j) These Terms are subject to change by Provider without prior written notice at any time, in our sole discretion. Any changes to these Terms will be in effect as of the "Last Modified Date" referenced on the Company website. You should review these Terms prior to purchasing any product or services that are available through this Site. Your continued use of this Site after the "Last Modified Date" will constitute your acceptance of and agreement to such changes.
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