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Terms and Conditions
THIS AULTERRA AFFILIATE TERMS AND CONDITIONS AGREEMENT (“AGREEMENT”) IS BETWEEN YOU (THE "STANDARD AFFILIATE" or “PREMIUM AFFILIATE”) AND AULTERRA, LLC (THE "COMPANY"). BY CLICKING ON THE "I ACCEPT" BUTTON AT THE END OF THIS AGREEMENT YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE "I DO NOT ACCEPT" BUTTON AT THE END OF THIS AGREEMENT, AND YOU WILL NOT HAVE THE OPPORTUNITY AT THIS TIME TO BECOME A MEMBER OF THE AULTERRA AFFILIATE PROGRAM.
1. Overview. This Agreement contains the complete terms and conditions that apply to the Affiliate and the Company and supersedes all prior agreements and communications we may have had with respect to the subject matter hereof, whether oral or written. Becoming an Affiliate allows you to establish HTML linking between your web site and the Aulterra.com domestic web site (the "Aulterra Site"), subject to the terms and conditions of this Agreement. As used in this Agreement, "we," "us," and "our" will mean the Company, and "you," "your," and "yours" will mean the Standard Affiliate or Premium Affiliate (as each are defined in paragraph 4 herein).
2. Affiliate Agreement and Application. If you become a Standard Affiliate or Premium Affiliate, you will be allowed to establish links from your web site to the Aulterra Site, pursuant to the terms of this Agreement. To participate in the Aulterra Affiliate Program and become a Standard Affiliate or Premium Affiliate, you must read and accept the terms of this Agreement. If you accept the terms of this Agreement, you will then be required to complete and submit to us an Affiliate Application. We, in our sole discretion, will evaluate your application and determine whether your web site and any technology used by you to send us affiliate transactions (each, a "Program") would be a suitable Aulterra affiliate site. Not all applicants will become affiliates and not all Programs will be approved. Aulterra, in its sole discretion, may deny any application for any reason, including applications for sites that contain content that may be classified as defamatory, harassing, harmful, obscene, racially objectionable or unlawful. After our evaluation of your application, site and Programs, we will notify you via email of our acceptance or rejection of your Affiliate Application. If you are accepted as a Premium Affiliate, you will be required to purchase one (1) case of Aulterra Neutralizers at a wholesale price in order to activate your membership (the "Minimum Purchase Requirement"). There is no purchase required to become a Standard Affiliate. We maintain the right, at any time during your participating in the Aulterra Affiliate Program, to re-evaluate your web site and any Programs used by you to send us transactions and may, in our sole discretion, reject any web site and any Program for any reason. You may not use any new web site or Program without our prior written approval after approval of your initial Affiliate Application.
3. Ineligibility. You are not eligible to participate in the Aulterra Affiliate Program if you are a supplier, an employee of or contractor to Aulterra or an "Aulterra Competitor" (each, an "Ineligible Party"). An Aulterra Competitor means any entity producing or providing products of a similar nature that compete with those produced or provided by Aulterra (Neutralizer, Energy Pillow, etc). If you are an Ineligible Party, or are not sure whether you are or are not an Ineligible Party, you must contact us before attempting to accept the terms of this Agreement. If you are an Ineligible Party and you accept the terms of this Agreement, you agree to (i) terminate this Agreement immediately if you become or Aulterra determines you are an Ineligible Party at any time and (ii) keep confidential any Confidential Information, as defined below), which you have gained access to during your participation in the Affiliate Program. ANY BREACH OF THIS PROVISION SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
4. The Aulterra Program.
4.1 Definitions
. For purposes of this Agreement, the following terms shall apply:a. Retail Purchaser (RP) is an individual or entity that purchases Aulterra products at retail prices from either a Standard Affiliate's or Premium Affiliate's web site(s) or call in order. A Retail Purchaser is the end-user of the Aulterra product purchased.
b. Wholesale Purchaser (WP) is a person or entity that is authorized to buy Aulterra products in volume either directly from the Company or through a Premium Affiliate at wholesale prices and resell them to others except Retail Purchasers at retail price.
c. Standard Affiliate (SA) is a person or entity that may sell Aulterra Products to Retail Purchasers and has agreed to the affiliate terms and conditions.
d. Premium Affiliate (PA) is an Affiliate that may sell Aulterra Products to Retail Purchasers and Wholesale Purchasers, has made the minimum qualifying purchase and has agreed to the affiliate terms and conditions.
e. Sponsor is the Affiliate who directly introduced another affiliate to the affiliate program as determined through the tracking system.(vii) Retail Commission is a twenty five percent (25%) commission on retail sales made by Retail Purchasers as described in Schedule “A”.
f. Retail Commission is a twenty five percent (25%) commission on retail sales made by Retail Purchasers as described in Schedule “A”.
g. Wholesale Commission is a ten percent (10%) commission on wholesale sales made by Wholesale Purchasers as described in Schedule “A”.
h. Override Bonus is a five percent (5%) commission paid to Sponsors who are also Premium Affiliates on new purchases originating from persons or entities introduced to the site by the sponsor’s affiliates. The commission is based on the Net Sale Value from either retail or wholesale sales of Aulterra products as described in Schedule “A”
i. Commissions are paid on net sales after returns. Due to return timing commissions may be retracted or withheld from future commission checks depending on the timing of the returns.
j. Affiliate Hierarchies: Who introduced an affiliate to the site is determined by the Aulterra Web Site Affiliate tracking system which currently uses a unique Affiliate Id parameter and cookie mechanism. This tracking mechanism maybe changed at any time at the discretion of Aulterra to take advantage better technologies, processes and/or methods. Aulterra management reserves the right to change the affiliate hierarchy relationship to correct system errors or in special circumstances at their sole discretion. Affiliates may request an affiliate hierarchy change in writing for consideration with signatures of all effected introducing affiliates whose commission amounts may be impacted. There is no guarantee that such request will be approved by Aulterra.
4.2 The Program
a. Standard Affiliates will introduce and sell to Retail Purchasers the Aulterra product line through promotion and marketing efforts in accordance with this Agreement. Standard Affiliates will earn Retail Commissions and are not eligible to earn Override Bonuses from the Company.
b. Premium Affiliates will introduce and sell to Retail Purchasers and Wholesale Purchasers the Aulterra product line through promotion and marketing efforts in accordance with this Agreement. Premium Affiliates will earn Retail Commissions and Wholesale Commissions from the Company and are eligible to earn Override Bonuses from the Company.
c. Standard Affiliates may convert to Premium Affiliates by making the Minimum Purchase Requirement unless the Minimum Purchase Requirement was satisfied prior to conversion.
d. A Wholesale Purchaser is not entitled to any commissions as an Affiliate unless the Wholesale Purchaser completes the application and registration requirements to convert to a Standard Affiliate or Premium Affiliate. A Wholesale Purchaser may convert to an Affiliate (Standard or Premium) by following the procedures set forth in paragraph 2 herein. Upon conversion to a Premium Affiliate, the Wholesale Purchaser will not be required to purchase the Minimum Purchase Requirement if the Minimum Purchase Requirement was satisfied prior to such conversion.
e. A Retail Purchaser may become an Affiliate (Standard or Premium) by following the procedures set forth in paragraph 2 herein.
4.3 Payment. Retail Commissions, Wholesale Commissions and Override Bonuses will be made in U.S. dollars and will be paid within thirty (30) days after a month closes following the end of the first full month subsequent to the acceptance of this Agreement. The minimum commission or bonus payout each month will be $75.00. If the minimum payout is not reached by the 15th day of the month, earned commissions will roll-over to the next month until the combined commissions exceed $75.00. Upon earning at least $75.00 in commissions for one month, checks will automatically be mailed to the address set forth in the Affiliate Application.
5. Link to the Aulterra Site. Upon acceptance into the Aulterra Affiliate Program, you will have access to the Affiliate Interface located at www.aulterra.com. At this site you will be able to download HTML code and graphics that we have made available for you to use in your web site, subject to the following restrictions: (a) you may use the HTML code and graphics provided by Aulterra only to link to or search the Aulterra Site, PROVIDED THAT you do not use the HTML code or graphics provided by Aulterra in connection with any feature in your web site or in your Programs which is devoted to a comparison of Aulterra's holistic information or prices to holistic information or prices offered by any of the Aulterra Competitors, (b) the HTML code we will make available to you provides special link formats for linking to web pages within the Aulterra Site ("Links"). For commission fees to be properly tracked, recorded and earned, you must ensure that each of the links between your site or your Programs and our site are Links provided to you by Aulterra. We will not be liable to you for any lost commissions resulting from your failure to use appropriate Links. You also agree that those graphic images that you display pertaining to the Aulterra Site, for use as a link or otherwise, will only be graphic images that we provide to you from the Affiliate Interface. If we update those graphics, you agree to immediately replace our old graphics with the new graphics. You expressly agree to abide by all of the terms and conditions of use related to the Aulterra Sites, including the Affiliate Interface.
6. Updating Affiliate Site. The Aulterra Site is updated frequently, and therefore, to maintain the consistency and accuracy between the Aulterra Site and our Affiliate sites, you agree to update the content on your site and any Programs on a regular basis. All such maintenance and updating of web your site and Programs shall be at your sole cost and responsibility.
7. Prohibition on Copying Aulterra Site. You agree that your site and Programs will not, in any way, copy or resemble the look and feel of the Aulterra Site. You will not create the impression that your site or Programs are the Aulterra Site or in any way affiliated with or a part of the Aulterra Site. You will not frame any page in the Aulterra Site from within your web site or Programs. You also agree to not reverse-engineer, reverse-assemble, decompile or otherwise attempt to derive any source code from the Aulterra Site for your own personal or business use.
8. Aulterra Domain Name. You agree that your domain name does not and will not at any time contain the words "Aulterra" or any variation of the Aulterra name, and that you will not purchase any domain name or other right or otherwise contract with a third party to exploit the Aulterra name or the Aulterra Marks (as defined herein), for any purpose, including without limitation, causing your web site or Programs to appear as a search result. Violation of this provision by you will result in the immediate termination of this Agreement.
9. Consent for Publicity. You must obtain the Company's prior written consent, which may be withheld in the Company's sole discretion, to create, publish, distribute or use any written, electronically transmitted or other form of publicity that makes reference to "Aulterra" or the Aulterra Marks (as defined herein). Affiliate is prohibited from advertising the Aulterra product or services on any web site or in any other media that promotes sexually explicit material or violence, discrimination based upon race, sex, religion, national origin, sexual orientation or physical disabilities, and illegal activities. Affiliate agrees to not misrepresent the Company or Aulterra products or services and further agrees to utilize only Company pre-approved advertisements about Aulterra, the Company and the Aulterra Affiliate Program.
10. Prohibition of SPAM. Affiliate agrees to not utilize SPAM in promoting Aulterra. The use of SPAM is cause for the Company to terminate this Agreement. For the purpose of this Agreement SPAM is defined as e-mailing anyone, in bulk or by single mailing about Aulterra, who has not specifically requested the information directly from the Affiliate. The Company considers any type of advertisement about Aulterra or the Company posted to a newsgroup or chat room to be SPAM.
11. Password to Access Specific Affiliate Information. If you become a member of the Affiliate Program, you will be given a password so that you may enter the Affiliate Interface. From the Affiliate Interface you will be able to receive your sales statistics, reports and other information. Your commissions earned will be based on the reports you may access at the Affiliate Interface. You agree that our reports will be the final, determinative measurement of the calculation of your commissions.
12. Monitoring Web Site and Programs. You agree that we have the right to monitor your web site and Programs at any time and from time to time to determine if you are following the terms and conditions of this Agreement. If you are not following the terms and conditions of this Agreement, we may, in our sole discretion (i) require you to modify your site and/or Programs to comply with this Agreement or (ii) terminate this Agreement. If we notify you of changes we desire you to make to your web site and/or Programs and such changes are not made immediately, then we may terminate this Agreement without notice to you.
13. Trademarks and Logos. Aulterra owns all intellectual property rights (including, without limitation, all copyrights, patents, trademarks and trade secrets) in connection with and in all version of the Aulterra Site. During the term of this Agreement, Aulterra grants to you a non-exclusive, non-transferable, worldwide right and license to (i) access our site through the HTML links, subject to the terms of this Agreement and (ii) use our logo, trade names and trademarks ("Aulterra Marks") provided to you by Aulterra solely in connection with your display of such links. You will remove the Aulterra Marks from your web site and Programs upon termination of this Agreement. During the term of this Agreement, you grant to Aulterra a non-exclusive, non-transferable, worldwide right and license to use your logos, trade names, and trademarks ("Affiliate Marks") on the Aulterra Site in a listing of Affiliates; provided that we shall not be required to include Affiliate Marks in any such listing. We will remove Affiliate Marks from such listing upon termination of this Agreement. All Aulterra Marks or other words or symbols identifying Aulterra and its services are and will remain the exclusive property of Aulterra. You will not create, register, purchase, or obtain, (or attempt to do any of the foregoing) directly or indirectly, any trademark, service mark, trade name, company name, internet domain name, search engine listing, directory listing, metatag, name that redirects traffic to your site, or other proprietary or commercial right that is identical or confusingly similar (including variations and misspellings) to the Aulterra Marks ("Similar Marks"). You acknowledge that any such action would be made with the intent to confuse consumers as to the source, location, and sponsorship of the Aulterra services, and will constitute infringement of the Aulterra Marks. If you breach this paragraph, we will have the right to immediately terminate your participation in the Aulterra Affiliate Program and pursue all other remedies available against you in law or equity, including injunctive relief as provided herein.
14. Modification of Agreement. We may modify the terms and conditions of this Agreement, at any time in our sole discretion. You will be notified by email and posting of a change notice within the Affiliate Interface. Modifications may include, but are not limited to, changes in the scope of commission fees, payment procedures and the Aulterra Affiliate Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU MAY TERMINATE THIS AGREEMENT AS YOUR SOLE RECOURSE. IF YOU CONTINUE TO PARTICIPATE IN THE AULTERRA AFFILIATE PROGRAM FOLLOWING POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE AULTERRA SITE, YOU WILL BE DEEMED TO HAVE ACCEPTED SUCH MODIFICATIONS.
15. Term. The term of this Agreement shall be one (1) year commencing on the day we notify you of our acceptance of your Affiliate Application. Unless terminated by either party, this Agreement shall automatically renew upon each anniversary without further action by the parties.
16. Termination. Either party may terminate this Agreement at any time, with our without cause, by notifying the other party in writing by mail, email or fax of such termination. If this Agreement terminates because you have violated the terms of this Agreement, you will not be eligible to receive any payments, including any payments earned prior to termination. Upon termination of this Agreement for any reason, you shall immediately remove any Links from your web site and Programs and all licenses granted hereunder shall terminate.
17. User Information. You agree that customers who purchase holistic materials from your web site or Programs through the Aulterra Affiliate Program ("Users") will be considered customers of Aulterra, and Aulterra will own all information generated by such Users. You agree that all Aulterra rules, policies and operating procedures (including but not limited to policies relating to User personal identification information, customer orders, customer service and ticket fulfillment) will apply to such Users.
18. Confidentiality
18.1 Non-Disclosure. Affiliate will not, during or after the term of this Agreement, directly or indirectly, use, disseminate or disclose to any person, firm or other business entity for any purpose whatsoever, any information concerning the Company and the Aulterra Affiliate Program, which is not publicly available through legitimate sources that do not constitute a breach of this Agreement, which was disclosed to Affiliate or known by Affiliate as a consequence of, through or as a consequence or through Affiliate's exposure to such information during the term of this Agreement. This includes, but is not limited to, information regarding the Company's financial matters, contracts, strategic or business plans and related matters, and also includes information relating to research and development of products, software, services, marketing, merchandising and selling, trade secrets, Users and employee information (collectively, "Confidential Information").
Affiliate shall not be subject to the restrictions imposed herein with respect to any Confidential Information obtained by Affiliate from the Company pursuant to this Agreement if Affiliate can demonstrate that the information or data:
a.was, at the time of disclosure by Company to Affiliate, a matter of public knowledge through no violation of this Agreement by Affiliate; or
b.was or hereafter is obtained by Affiliate from another source who has a bona fide right to make such information available without restriction; or
c.is required via subpoena, court order or other legal process.
The exceptions of this paragraph 18 are only effective if Affiliate sends a written notice to Company identifying the specific information and/or ideas that Affiliate intends to use or disclose and the provision(s) of this Agreement which Affiliate deems to permit him/her/it to use or disclose such specific information and/or ideas without a breach of this Agreement, together with a statement of the reasons (based on facts known to Affiliate) to which Affiliate believes such provision(s) apply at least thirty (30) days prior to making use or disclosure of such data or information.
Affiliate shall give timely notice to Company of his receipt of a subpoena, court order or legal process as set forth in paragraph 18.1c.
18.2 Confidential Relationship. Affiliate shall hold in a fiduciary capacity for the benefit of the Company all Confidential Information described in paragraph 18.1 above, along with any and all concepts, ideas, improvements or know-how, discovered or developed by Affiliate, or jointly with Company or its employees during the term and for a period of five (5) years after termination of this Agreement which may be useful in the Company's business.
18.3 Return of Documents. To protect the interests of the Company, Affiliate agrees that all documents, records, notebooks, computer discs and similar repositories containing Confidential Information described in paragraphs 18.1 and 18.2 above, including all copies thereof, then in Affiliate's possession or control, whether at his/her/it home, business or elsewhere, whether prepared by Affiliate or others, are the property of the Company and shall be promptly returned to the Company upon the termination of this Agreement and Affiliate shall certify within thirty (30) days of such termination, that all such repositories of Confidential Information have been returned to the Company.
19. DISCLAIMER OF LIABILITY. WE MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE AULTERRA SITE OR ITS PERFORMANCE, AVAILABILITY OR FUNCTIONALITY. ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT BY THE COMPANY ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
20. LIMITED WARRANTY ~ AULTERRA PRODUCTS. The Company warrants to Affiliate the Aulterra products sold to Affiliate and any Wholesale Buyer in accordance with the written warranty attached hereto. THE COMPANY MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, AND THE COMPANY SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
21. Representations and Warranties. You represent and warrant that:
a.you are not an Ineligible Party;
b. you are the sole and exclusive owner of the Affiliate Marks and have the right to grant to the Company the license to use them as described in this Agreement;
c. your web site and Programs are in compliance with all applicable laws and regulations and do not contain any material that is fraudulent, defamatory or obscene or infringe upon any patents, trademarks, trade names, copyrights or the like;
d. you, if you are a company, are duly organized, validly existing and in good standing, and are qualified and/or licensed to do business in all jurisdictions to the extent necessary to carry out your obligations under this Agreement;
e. your execution, delivery and performance of this Agreement will not violate or constitute a default under any agreement to which you are a party;
f. you have the legal capacity and power to execute, deliver and perform this Agreement and have the full right, power and authority to enter into and be bound by the terms and conditions of this Agreement;
g. this Agreement has been duly and validly executed and delivered by you by clicking on the "I Accept" button at the end of this Agreement and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms; and
h. there is no pending, or to the best of your knowledge, threatened claim, action or proceeding against you, or any affiliate of yours, with respect to your execution, delivery or performance of this Agreement, or with respect to the materials you will deliver under this Agreement, and, to the best of your knowledge, there is no basis for any such claim, action or proceeding.
These representations and warranties survive termination or expiration of this Agreement.
22. Independent Contactor. The parties acknowledge and agree that the Affiliate is an independent contractor to the Company and not an employee thereof. The Company will not withhold or pay on behalf of the Affiliate: (i) federal and local income taxes; or (ii) any other payroll tax of any kind. In accordance with the terms of this Agreement and the understanding of the parties herein, the Affiliate shall not be treated as an employee with respect to the services performed hereunder for federal, state or local tax purposes. The Affiliate understands that he/she/it is responsible to pay all taxes associated with services provided under this Agreement in accordance with federal, state and local law, including, without limitation, all income, sales and employment taxes. Affiliate shall obtain all business licenses as may be required for the conduct of a business by Affiliate. Further, Affiliate shall comply with all state and federal income tax requirements imposed on self-employed persons. Because Affiliate is engaged in his/her/it own independent contracting business and is not an employee of the Company, the Company will not obtain workers' compensation insurance for the Consultant or his/her/its employees (if any). Worker's compensation insurance shall be the Affiliate's sole responsibility. Affiliate represents and warrants that he/she/it has attained any necessary worker's compensation insurance prior to entering into this Agreement. Affiliate shall supply, at his/her/it sole expense, all normal equipment, tools, materials and/or supplies to complete Affiliates business.
23. LIMITATIONS OF LIABILITY. WE WILL NOT BE LIABLE TO YOU UNDER ANY CIRCUMSTANCES WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL AULTERRA'S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED TEN THOUSAND DOLLARS ($10,000).
24. Indemnification. You agree to indemnify, defend and hold harmless Aulterra and its employees, representatives, agents and corporate affiliates (each, an "Indemnified Party"), against any and all claims, suits, actions, or other proceedings brought against the Indemnified Party based on or arising from any claim (i) that the use of any material provided by you infringes on any copyright, patent, trademark, trade secret or any other intellectual property or other right of any third party, (ii) resulting from your breach of this Agreement, or (iii) related to your web site or Programs, including, without limitation, content therein not attributable to us. You will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by the Indemnified Party in connection with or arising from any such claim, suit, action, or proceeding.
25. Arbitration/Equitable Relief. Any differences, claims or matters in dispute arising between the Company and Affiliate out of or connected with this Agreement shall be submitted by them to arbitration by the American Arbitration Association or its successor and the determination of the American Arbitration Association or its successor shall be final and binding upon the parties. The arbitrator shall be governed by the duly promulgated rules and regulations of the American Arbitration Association or its successor, and the pertinent provisions of the laws of the State of Idaho, relating to arbitration. The situs of any arbitration shall occur in Kootenai County, Idaho. The decision of the arbitrator(s) may be entered as a judgment in any court of the State of Idaho or elsewhere.
Despite the foregoing Affiliate agrees that violating or threatening to violate paragraphs 7, 8, 13, and 18 of this Agreement at any time will produce severe damage and injury to the Company. In the event of the breach of, or threatened breach by Affiliate of paragraphs 7, 8, 13 and/or 18 of this Agreement, the Company shall be entitled to seek injunctive relief, both preliminary and permanent, enjoining and restraining such breach or threatened breach. The remedy provided in this paragraph shall be in addition to all other remedies available to the Company in law or in equity.
26. Miscellaneous
26.1 You may not assign your rights or obligations under this Agreement to any party.
26.2 You understand that we may at any time, directly or indirectly, engage in similar arrangements on terms that may differ from those contained in this Agreement, or we may operate web sites that are similar to or compete with your web site and Programs.
26.3 You have independently evaluated this Agreement and are not relying on any representation, guarantee, or statement from us or anyone else, other than as expressly set forth in this Agreement.
26.4 Except as otherwise permitted by this Agreement, no amendment to this Agreement or waiver of any right or obligation created by this Agreement will be effective unless it is in writing and signed by both you and us. Our waiver of any breach or default will not constitute a waiver of any different or subsequent breach or default.
26.5 Neither party will be liable for failure to perform or delay in performing any obligation under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), commercial impracticability, embargo, blockade, legal prohibition, governmental action, riot, insurrection, damage, destruction or any other cause beyond the reasonable control of such party.
26.6 If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
26.7 In the event any action or proceeding is instituted to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to receive reimbursement of reasonable attorney's fees and costs incurred therein or on any appeal from any action or proceeding.
26.8 Upon termination of this Agreement for any reason, the provisions of this Section and Sections 13, 17, 18, 19, 20, 22, 23, 24, 25 and 26.7 shall survive this Agreement.
26.9 No waiver by Companay of any default shall operate as a waiver of any other default or of the same default on a future occasion.
26.10 The headings and titles contained in this Agreement are included for convenience only, and will not limit or otherwise affect the terms of this Agreement.
