To be an authorized affiliate of Lyquid Agency (“Company” or “we” or “our”), you (“Affiliate” or “Independent Contractor” or “Referring Partner”) agree to abide by the terms and conditions contained in this agreement. Please read this agreement carefully before registering and signing on as an affiliate. By signing up for the Lyquid Agency Affiliate Program, you are agreeing to accept this Affiliate Program Agreement and its terms and conditions. If you sign up on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
This Affiliate Program Agreement (Agreement”) is subject to change at any time, without prior notice. You are responsible for reviewing this Agreement on a regular basis. Any changes that are made to this Agreement will not apply retroactively and will not apply to disputes or events occurring before the change is published.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. MARKETING THE LYQUID SERVICES
a. Acceptable Merchants. You shall market LYQUID Services only to bona fide and lawful businesses and in accordance with Lyquid’s policies, procedures and standards and this Agreement. Further, You shall promptly notify Lyquid in writing of any adverse information that You receive relating to a referral, including information regarding a referral’s financial condition or any other information relating to referral that would have a material effect on referral’s ability to conform to the terms of its agreements, including any illegal activity committed by referral.
b. Independent Contractor Covenants. Independent Contractor will: (i) conduct business in a manner that reflects favorably at all times on LYQUID Services and the good name, good will and reputation of Lyquid; (ii) avoid deceptive, misleading or unethical practices that are or might be detrimental to Lyquid, the LYQUID Services or the public; (iii) make no false or misleading representations with regard to Lyquid or the LYQUID Services; (iv) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Lyquid or the LYQUID Services; (v) promote proper use of LYQUID Services, and (v) make no representation, warranties or guarantees to potential referrals with respect to the specifications, features or capabilities of the LYQUID Services that are inconsistent with the information publically and privately distributed by Lyquid.
c. Use of the Marks. You may use the trademarks and service marks of Lyquid (“the “Marks”) only in promoting the LYQUID Services in conformance with the Rules subject to the sole discretion and approval of Lyquid. Upon termination of this Agreement, You agree that You shall no longer use the Marks or anything similar thereto. Notwithstanding anything to the contrary contained herein, nothing stated herein shall be construed as granting You any right, title and interest in and to the Marks or the goodwill associated therewith, and You acknowledge that you will not, at any time, during or subsequent to the term of this Agreement, do or cause to be done, any act or thing contesting or in any way impairing or intending to impair any part of the right, title and interest and the goodwill represented by the Marks or impugn in any fashion the reputation of Lyquid or attack the validity of the Marks.
d. Costs incurred. Any and all costs and expenses incurred by the Referring Partner (Affiliate), including, but not limited to, travel expenses, clerical expenses and maintenance, will be the responsibility of the Referring Partner and the Company will not in any way be responsible or liable for such costs and expenses.
2. DUTIES OF REFERRING PARTNER
The Referring Partner and the Company hereby agree that the Referring Partner will use its reasonable best efforts to endorse and promote the Company and its business and services.
The Referring Partner agrees that they will refer any and all potential clients and/or company contacts to the Company that the Referring Partner deems in its sole discretion to be best suited for LYQUID Services.
Prior to Referral Partner actively promoting LYQUID Services, Referral Partner must accumulate a reasonable understanding of Lyquid and LYQUID Services if Referral Partner will be consulting and recommending any of LYQUID Services. Company will provide reasonable information; including private videos (when created and published) Referral Partner must view in order to gain a reasonable knowledge of products and services available through Company. If Referral Partner does not understand any specific product or service provided for by Company, Referral Partner must communicate with Company in order to receive further information and understanding. It is the Company’s expectations that Referral Partners should never promote a product or service of Company that they do not fully understand.
You shall extend no warranties or guarantees without the pre-approval of the Company, whether orally or in writing in the name of the Company or which would otherwise bind the Company with respect to the performance, quality, merchantability or fitness for a particular purpose of the Company’s goods or services.
3. Promotional Materials.
In connection with any marketing efforts you choose to make for our services, please ensure that all promotional materials adhere to the following guidelines:
a. Product and Service Reviews: In the event that you do a product or service review of any of our offerings, you should make sure that you disclose upfront that you receive a percentage of each sale made. In addition, all endorsements must reflect the honest opinions or experiences of the endorser. Any disclosures must be clear and conspicuous and not hidden. The most important principle is that an endorsement has to represent the accurate experience and opinion of the endorser. In addition, you must follow the following guidance:
i. You can’t talk about your experience with a product or service if you haven’t tried it.
ii. If you were paid to try a product or service and you thought it was terrible, you can’t say it’s terrific.
iii. You can’t make claims about a product or service that would require proof you don’t have. For example, you can’t say a product or service will cure a particular disease if there isn’t scientific evidence to prove that’s true.
Furthermore, such disclosures must be made clearly, frequently and conspicuously. Such disclosures ensure that readers can formulate an informed opinion about the information you provide by understanding the possible influence your material connection with our company might have on your endorsement of our products.
b. Linking In Articles: When using our affiliate link in an article, you must display a clear disclosure about the nature of your affiliate links and the material connection you have with our company. These disclosures must appear on the same page where the links appear, and they must be clear, conspicuous, and require no additional user interaction to read (such as clicking a link, scrolling or hovering over an element). According to the FTC: “Putting disclosures in obscure places – for example, buried on an ABOUT US or GENERAL INFO page, behind a poorly labeled hyperlink or in a terms of service agreement – isn’t good enough. The average person who visits your site must be able to notice your disclosure, read it and understand it.” All disclosures should appear in full, either before or in close proximity to the affiliate link itself.
Example Article Disclosure: “Disclosure: Some of the links in this post are ‘affiliate links.’ This means if you click on the link and purchase the item, I will receive an affiliate commission.”
c. Linking On Social Networks: When using our affiliate links on social networks, you must also display a clear disclosure about the nature of the links and the material connection you have with our company. In the form of social media posts, these disclosures must be part of the post that contains the affiliate link.
Example Facebook/Google+ Disclosure: “Ad: Check out our review of Lyquid Agency, and why we think it’s the best business website service around.”
Example Twitter Disclosure: “Lyquid Agency has the best website service in the business! #ad”
4. Affiliate Tracking and Commissions.
(a) You must choose either Option #1 or Option #2 as set forth below regarding which commission plan will be applied to your affiliate account. Your decision will be final and binding, with no option to change the commission structure once Agreement is accepted via the affiliate sign up form.
OPTION #1 Commission Structure
Option #1 is a 15% commission for the entire first initial payment made by referral with a 5% bonus based on 6 months of service after a referral passes 12 months of holding an active account in good standing with Company. This 5% bonus commission is paid at the end of each year if your referral stays with Company the entire year without accounts problems. This 5% bonus commission is calculated on all referral’s recurring services and tools chosen at the time of referral’s account creation. Commission is calculated on fees paid in full by referral after a holding period of ninety (90) days paid to Company. The bonus 5% commission is paid to Independent Contractor every year for the life of the referral’s account as long as referral’s account remains in good standing for each full 12 month period.
OPTION #2 Commission Structure
Option #2 is an ongoing 10% commission based on the ongoing core website plan payments with no bonus or upfront commission on the total sale. This 10% commission is paid at the end of the month following the payment. If referral pays quarterly, biannual or annual, commission will still be paid at the end of each month, however the 10% commission will be calculated on what each month breakdown cost is for referral’s account.
b. All sales are tracked using visitor IP and/or cookies as well as through verbal or written confirmation by the referral and referring affiliate. While this is the best method available, it is not perfect. We can only guarantee that sales will be tracked if the user’s IP does not change or their cookies are not cleared and that they confirm you have referred them. This is also applied to any renewals, which are tracked independently of the initial purchase. Affiliate will include all Site integration tags, tracking pixels and other tracking code (“Code”) that we request, included any Code incorporated into the Links and/or Creatives. Affiliate may not alter the Code under any circumstances. If you alter, remove or disable any Code, you will not be paid for any net revenue that were or could have been attributed to that Code. In the event of a discrepancy in reporting, the tracking statistics and reports of Company shall control.
c. The last affiliate to refer a visitor gets credit for the sale. Multiple affiliates will not be paid for the same sale. Affiliates agree that in the event of a dispute regarding credit or payment, the sole determination of Company shall be final and binding. If a payment is refunded, then the commission for this payment will be removed from your account.
d. Only intentional clicks are allowed in the system. Forcing visitors to click a link, or using fake tracking pixels (also known as “cookie stuffing”), or any other means to register unsuspecting visitors in the system is strictly prohibited. Accounts using such methods will be terminated without warning and all revenues will be forfeited. This includes, but is not limited to, the use of: Auto-Hit or Auto-Surf programs, displaying affiliate tracking URL within an iframe or image src, automatic pop-ups or automatic redirects to affiliate URL’s without action by the visitor, or any other method meant to automatically track a visitor in the affiliate system without an intentional click from an interested buyer. If Company believes that Affiliate has fraudulently added registrations by non-approved methods (as solely determined by Company in its judgment), Affiliate agrees the payout for all such fraudulent leads will be forfeited.
e. Visitors referred by Affiliates are tracked for a maximum of 1 month. Visitors who are referred and make a purchase 1 month after clicking an Affiliate’s link will not be tracked, and a sale will not be awarded or compensated unless the referred client confirms You as the referring source.
a. Payments are sent out automatically between the 15th and the end of each calendar month to Affiliates with a balance of $100.00 and above. No payments will be due or payable until an Affiliate has earned at least U.S. $100.00 hereunder. Payments are only made through PayPal. Therefore, you must have a valid PayPal email address assigned to your account to receive any payment.
b. Company shall pay Affiliate the agreed upon percentage of Net Revenue from customers. Company shall have the right at any time in its sole discretion to alter the percentage of Net Revenue paid to Affiliates (including the payment of commissions upon renewal) upon the provision of ten days’ prior notice. Net Revenue means the gross revenues actually received by Company due to Affiliate’s actions less taxes, refunds, processing charges, rebates and any discounts given. Commission payment will be paid by the Company to You after 90 days of service has been reached on an active referred account in good standing. As Company strives to maintain respectable and healthy accounts, if referral closes account within this initial 90 day holding period, no commissions will be paid for either commission program option.
c. If you disagree with any compensation paid in connection with any month, you agree to notify Company within thirty days of payment for such month. Otherwise, you agree that any and all claims for underpayment for such month shall be waived. YOU AND COMPANY AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
d. If in the event that referral modifies their website plan and/or products and services chosen with Lyquid, Commission will be adjusted to fit the account modification. For example, if a referral upgrades or downgrades their website plan, cancels separate services or tools, Referral Partner will be compensated according to the set plan modification.
e. The Referring Partner and the Company hereby agrees that the commission shall only be due and payable to the Referring Partner in the event of:
(i) the referred client is not currently a client of the Company nor has already been introduced to the Company at any point in the past by means not related directly to Referring Partner;
(ii) the goods or services have been accepted by the referred client and all payments have been made in full by the referred client;
(iii) the referred client has not demanded a refund after the goods or services have been rendered,
(iv) the Referring Partner will only receive commission on the initial services and tools entered into between the Company and the referral, and the Referring Partner shall not be entitled to commission if the referral, on its own accord, enters into another transaction with the Company post initial account creation.
(v) Commissions will only be paid once per referral to a single Referral Partner if in the event the customer of Lyquid has been generated from Referral Partner’s direct activities.
(vi) If two Referral Partners claim to have referred the same client whereas the referral becomes a client of Lyquid, commission will only be awarded once to the first Referral Partner who claims and provides proof of referral and is equally verified by referred client during account creation.
(vii) In order to receive credit for a referral, Referral Partner and referred client must acknowledge a relationship of being referred within one (1) week post referral customer’s account creation whereas Referral Partner must also fill out in detail and submit (electronically) Company’s “Referral Claim Form” whereas a representative of Company will review the form submission within 24 hours and acknowledge receipt.
(viii) Link tracking is maintained, however every referral must declare the referring source in order to guarantee that You receive credit and commission for referral.
6. Account Term and Termination.
a. If we suspect that you are engaged in fraud of any kind, your account may be terminated without notice. Affiliates who have had their accounts terminated are not eligible to become affiliates thereafter. Accounts which refer customers using misleading or falsified information will be terminated. Lying to a potential customer in order to persuade them to purchase our products or services is strictly forbidden. Using illegal means of promotion, including (but not limited to) email SPAM is strictly prohibited. Accounts found to be promoting our products and services using methods that break the CAN-SPAM Act of 2003 will be immediately terminated and removed from the system.
b. Only one person may use an account, and each person may only create one account for themselves. Creating multiple accounts is not allowed. Affiliates with multiple accounts will be terminated.
c. Company reserves the right in its sole discretion, and without any prior notice, to terminate your access to the Service for any or no reason, including your breach of this Agreement or a violation of the rights of another or the law.
d. The initial term of this Agreement shall be for a period of three (3) years, commencing on the date first set forth upon affiliate sign up form completion and submission. This Agreement shall thereafter be automatically renewed for additional terms of one (1) year each unless either party notifies the other no later than thirty (30) days prior to the end of the current term that it does not wish to renew this Agreement.
e. Compensation to Independent Contractor Following Termination. Lyquid will not provide compensation after termination of this Agreement no matter if in the unforeseen future a referral becomes a client of Lyquid after hearing about LYQUID Services at any past time through You.
f. Termination of Compensation. If this Agreement is terminated by Lyquid or You commit a material breach of the terms of this Agreement, Lyquid shall have no further obligations for payment of any compensation to You under this Agreement. Lyquid shall have the right to terminate compensation to You if You are not actively soliciting and establishing new client accounts for a period of three (3) months. You must refer a minimum of one (1) approved and active account for every three (3) month period to be considered as actively soliciting business accounts to continue to receive compensation under this Agreement.
7. Prohibitions. Affiliate warrants and covenants on an ongoing basis that its web site(s) and marketing practices:
a. Do not violate any law or regulation governing (i) false or deceptive advertising, (ii) sweepstakes, or (iii) gambling;
b. Do not contain any trade disparagement or libelous, defamatory or infringing content; and (i) do not contain any machine-readable code that could be unintentionally downloaded onto a recipient’s computer (such as a worm, virus, Trojan Horse or other self-executing program) and damage or takeover recipient’s computer;
c. Do not offer incentives to users to click on ads or complete offers that award them cash, points, prizes or automatically enter them into contests, drawings or sweepstakes;
d. Will only be marketed to people who are eighteen (18) or older that are eligible to use the Company’s product or service.
e. Comply with all local, state and federal laws regarding email marketing (CAN-SPAM ACT, effective January 1, 2004). If Company notifies Affiliate of its receipt of any complaint regarding Affiliate’s email practices, or alleged violations of email practices, Affiliate must respond to Company within forty-eight (48) hours of such notification and provide source information, including, but not limited to: (i) time, (ii) date, (iii), IP address, (iv) opt-in source, and (v) content of email message.
f. As a condition to your participation in the Affiliate Program, you agree that while you are an Affiliate, you will comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you, whether those laws, etc. are now in effect or later come into effect during the time you are an Affiliate. Without limiting the foregoing obligation, you agree that as a condition of your participation in the Program you will comply with all applicable laws (national, federal, state or otherwise) that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
g. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
h. Affiliate’s websites do not contain any materials that are:
i. Obscene, or pornographic;
ii. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise);
iii. Graphically violent; or
iv. Solicitous of any unlawful behavior
i. Affiliate has obtained any necessary clearances, licenses, or other permission for any intellectual property used on Affiliate’s websites. Nothing on Affiliate’s websites infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future.
j. Affiliate will not use the Promotional Materials in any manner other than those set forth above.
k. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
l. Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s websites that reference Company or Company’s website unless Company gives prior written consent to the distribution of such materials. Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its websites, in its promotional materials, or in any other context except to promote Company’s website as specified in this Agreement. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name.
m. Affiliate shall not during the Term compete directly or indirectly with Company in the sale of third party products, services or merchandise without the prior written consent of Company, provided that it shall not be a violation of this section for Affiliate to sell Affiliate-branded products or merchandise or products or merchandise previously marketed by Affiliate.
8. FTC Compliance.
The Federal Trade Commission requires that affiliates disclose to their readers when they endorse a product and have a “material connection” to the seller of that product. These rules apply to any online review, article or endorsement that includes our affiliate link and encourages visitors to purchase our product. Disclosures are not required for links that are clearly advertisements (such as banner ads in your blog’s sidebar). By participating in our Affiliate Program, all Affiliates must agree to comply with the Federal Trade Commission’s 16 CFR § 255.5 (http://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf), and review and follow the suggestions outlined in their Revised Endorsement Guides FAQ (http://business.ftc.gov/documents/bus71-ftcs-revised-endorsement-guideswhat-people-are-asking). Every time you link to LyquidAgency.com in an article using your affiliate link, you must disclose the nature of your relationship with our company. Furthermore, such disclosures must be made clearly, frequently and conspicuously. Such disclosures ensure that readers can formulate an informed opinion about the information you provide by understanding the possible influence your material connection with our company might have on your endorsement of our products. Those Affiliates who do not comply with the FTC guidelines will be subject to account termination and commission reversal.
a. Appropriate Disclosure
i. Linking In Articles: When using our affiliate link in an article, you must display a clear disclosure about the nature of your affiliate links and the material connection you have with our company. These disclosures must appear on the same page where the links appear, and they must be clear, conspicuous, and require no additional user interaction to read (such as clicking a link, scrolling or hovering over an element). According to the FTC: “Putting disclosures in obscure places – for example, buried on an ABOUT US or GENERAL INFO page, behind a poorly labeled hyperlink or in a terms of service agreement – isn’t good enough. The average person who visits your site must be able to notice your disclosure, read it and understand it.” All disclosures should appear in full, either before or in close proximity to the affiliate link itself.
Example Article Disclosure: “Disclosure: Some of the links in this post are “affiliate links.” This means if you click on the link and purchase the item, I will receive an affiliate commission.”
ii. Linking On Social Networks: When using our affiliate links on social networks, you must also display a clear disclosure about the nature of the links and the material connection you have with our company. In the form of social media posts, these disclosures must be part of the post that contains the affiliate link.
Example Facebook/Google+ Disclosure: “Ad: Check out our review of Lyquid Agency, and why we think it’s the best business website service around.”
Example Twitter Disclosure: “Lyquid Agency has the best website service in the business! #ad”
Affiliate shall indemnify Company and hold harmless and defend Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth herein. Affiliate shall also indemnify, defend and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Company Information.” Affiliate may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.
11. Taxes and PayPal Payment Fees.
Company shall not be responsible for any taxes or PayPal money transfer fees owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes or fees from the Commissions paid to Affiliate.
12. Your Status and Performance.
Independent Contractor represents and warrants to Lyquid as follows:
(a) If other than a sole proprietorship, Independent Contractor is duly organized, authorized and in good standing under the laws of the state of its organization and is duly authorized to do business in all other states in which Independent Contractor’s business makes such authorization necessary or required.
(b) Promotion and referrals will not include business types Company bans from all use of Company’s services. Independent Contractor understands the Company will not accept accounts from the business types as listed within Company’s Terms of Service Agreement located at: http://golyquid.com/tos
(c) Either the Referring Partner or the Company shall not be liable for any failure to perform or delay in the performance of its obligations under this Agreement due to causes beyond its control, including without limitation, interruptions of power or telecommunications services, failure of its suppliers or subcontractors, acts of nature, governmental actions, fire, flood, natural disaster or labor dispute.
(d) Non-Solicitation of Clientele. Without Lyquid’s prior written consent (which consent may be withheld in Lyquid’s sole and absolute discretion), Independent Contractor shall not knowingly cause or permit any of their employees, agents, principals, affiliates, subsidiaries or any other person or entity (i) to solicit or provide services that compete with the LYQUID Services to any client that has been accepted by Lyquid; (ii) to solicit or otherwise cause any client that has been accepted by Lyquid or its vendors to terminate its participation in any of the LYQUID Services; or (iii) to solicit or market services to any client that is already directly or indirectly provided any of the LYQUID Services by Lyquid, whether or not such are provided under the terms of this Agreement. This section shall apply during the term of this Agreement and for five (5) years after any termination, cancellation or expiration of this Agreement. Independent Contractor will remain responsible for resulting damages from such prohibited solicitation.
13. Intellectual Property. “Intellectual Property” means all of the following owned by a party: (i) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (ii) patents, patentable inventions, computer programs, and software; (iii) databases; (iv) trade secrets and the right to limit the use or disclosure thereof; (v) copyrights in all works, including software programs; and (vi) domain names. The rights owned by a party in its Intellectual Property shall be defined, collectively, as “Intellectual Property Rights.” Other than the express licenses granted by this Agreement, Lyquid grants no right or license to Independent Contractor by implication, estoppel or otherwise to the LYQUID Services or any Intellectual Property Rights of Lyquid. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of Lyquid, in the LYQUID Services) and all intellectual property rights therein, subject only to the rights and licenses specifically granted herein. Lyquid (and not Independent Contractor) shall have the sole right, but not the obligation, to pursue copyright and patent protection, in its sole discretion, for the LYQUID Services and any Intellectual Property Rights incorporated therein. Independent Contractor will cooperate with Lyquid in pursuing such protection, including without limitation executing and delivering to Lyquid such instruments as may be required to register or perfect Lyquid’s interests in any Intellectual Property Rights and any assignments thereof. Independent Contractor shall not remove or destroy any proprietary, confidentiality, trademark, service mark, or copyright markings or notices placed upon or contained in any materials or documentation received from Lyquid in connection with this Agreement.
14. Limitation of Liability.
Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement. COMPANY’S LIABILITY, AND THE LIABILITY OF OUR SUPPLIERS AND AFFILIATES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE, SHALL NOT EXCEED THE TOTAL SUM OF $100.00. THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE CONTRACT BETWEEN US AND YOU. Some states do not allow the limitation of liability, so the foregoing limitation may not always apply.
For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The individuals signing this Agreement represent and warrant that they are authorized to bind and do so bind the party on behalf of which they are executing this Agreement.
If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
18. Applicable Law, Arbitration and Class Action Waiver.
a. This Agreement is entered into in the State of Illinois. This Agreement shall be governed by and construed under the laws of the State of Illinois, excluding that body of law applicable to conflicts of law.
b. Any claim or controversy arising out of or relating to the Agreement or to any acts or omissions for which you may contend we are liable, including but not limited to any claim or controversy (“Dispute”), shall be finally, and exclusively, settled by arbitration in Chicago, Illinois, from which arbitration there shall be no appeal. The arbitration shall be held before one arbitrator under the Commercial Arbitration rules of the American Arbitration Association (“AAA”) in force at that time. The arbitrator shall be selected pursuant to the AAA rules. The arbitrator shall apply the substantive law of the State of Illinois, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. To begin the arbitration process, a party must make a written demand therefore. Each part shall bear its own costs and attorneys’ fees. Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction in Illinois. The arbitrator shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of arbitration under this Agreement with arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved. THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING ARBITRATION. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOU ACKNOWLEDGE AND AGREE THAT YOU AND LYQUID AGENCY ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and we otherwise agree, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.
c. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, except that either party may assign this Agreement in its entirety to any purchaser of all or any substantial portion of its business or assets or to any subsidiary or other affiliate without the prior approval of the other party, provided that the assignee specifically assumes in writing all of the obligations of the assignor. The parties agree that a merger, consolidation or acquisition of a controlling interest in a party shall be deemed an assignment of this Agreement for purposes of this provision.
20. Survival. All representations, covenants and warranties shall survive the execution of this Agreement, and Sections 1b, 1c, 1d, 5b, 5c, 6a, 6b, 6c, 6e, 6f, 9, 10, 11, 12d, 13, 14, 15, 18, and 19 shall survive termination of this Agreement.
21. Entire Agreement.
This Agreement constitutes the entire agreement between Company and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may be amended or modified only in writing agreed to and signed by authorized representatives of both parties.