PAYKICKSTART, LLC, AN INDIANA LIMITED LIABILITY COMPANY (“PAYKICKSTART”), IS WILLING TO PROVIDE RIGHTS TO PARTICIPATE IN THE PAYKICKSTART AFFILIATE PLATFORM ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY CLICKING ON "I ACCEPT", YOU WILL INDICATE YOUR AGREEMENT WITH THEM. ALL REFERENCES TO “WE”, “US”, “OUR”, OR “THIS WEBSITE” SHALL MEAN PAYKICKSTART AND THIS WEBSITE, PAYKICKSTART.COM. IF YOU ARE NOT ACTING ON BEHALF OF YOURSELF AS AN INDIVIDUAL, THEN "YOU" MEANS YOUR COMPANY OR ORGANIZATION. YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND YOUR ENTITY TO THESE TERMS, IN WHICH CASE "YOU" OR "YOUR" SHALL REFER TO YOUR ENTITY. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, THEN WE ARE UNWILLING TO AUTHORIZE PARTICIPATION IN THE PAYKICKSTART AFFILIATE PLATFORM.
PAYKICKSTART VENDOR AGREEMENT
Effective Date: July 14th, 2015
To Review Material Modifications Since July 14th, 2015, Scroll To The Bottom of The Page.
1.1 “Affiliate” means an individual person or entity that is registered and authorized to participate in the PayKickstart Affiliate Platform in accordance with the terms of this Agreement for purposes of promoting the Products (defined below) of Vendors for commissions based on sales procured for the Vendor.
1.2 “Affiliate Platform” means the online service at PayKickstart.com that permits Vendors to authorize Affiliates to promote their products and services for commissions based on sales procured for the Vendor, subject to the terms and conditions of this Agreement.
1.3 “Order Form” means the form specifying Vendor’s requirements for authorizing an Affiliate to promote the Vendor’s Products.
1.4 “Products” means the Products offered by a Vendor for promotion through the Affiliate Platform.
1.5 “Vendor” means an individual person or entity that is registered and authorized to participate in the PayKickstart Affiliate Platform for purposes of (i) approving specified Affiliates to promote their Products, and (ii) to pay commissions to approved Affiliates based on sales procured by approved Affiliates.
- Conditions For Participation in The Affiliate Platform. Your acceptance of this Agreement means that you have agreed to the terms and conditions for participating in the Affiliate Platform.
2.1 No Prior Approval. The Affiliate Platform is a private network. We do not exercise rights to approve of your registration as a Vendor, but we reserve the unqualified right to terminate this Agreement and your participation in the Affiliate Platform with or without cause.
2.2 Vendor Approval of Affiliates. As an Affiliate Platform Vendor, you may select participating Affiliates to promote your Product(s). You may specify promotional requirements for specific Products for specific Affiliates with Order Forms you create including commissions payable to the Affiliate for completed sales of your Product(s), as well as promotional conditions for your Affiliates. Promotional conditions may include: (i) the types of permitted advertisement formats such as links, banner ads, and other advertising materials and formats, and (ii) the types of media for display of advertisements. You agree that all of your promotional requirements for participating Affiliates will be provided in your Order Forms, which will be mutually agreed upon between you and your participating Affiliate in a signed, written document.
Vendors have the unqualified right to reject any Affiliate that desires to promote their Products for any reason. We do not represent or warrant that you will be approached by any Affiliates for purposes of promoting your Product(s).
- Modification of Agreement. We reserve the right to modify this Agreement at any time by posting an amended Agreement that is always accessible on this page and/or by giving you prior notice of a modification. You should check this Agreement periodically for modifications by scrolling to the bottom of this page for a listing of material modifications and their effective dates. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED USE OF THIS SITE FOLLOWING OUR POSTING OF AN AMENDED AGREEMENT OR PROVIDING YOU NOTICE OF A MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE.
- Eligibility And Registration. We do not allow minors (persons under 18 years of age) to participate in the Platform. Additional eligibility requirements for participation in the PayKickstart Affiliate Platform are determined in our sole discretion. Registration is required for you to participate in the Affiliate Platform. You agree (i) to provide certain current, complete, and accurate information about you as prompted to do so by our online registration form ("Registration Data"), and (ii) to maintain and update your Registration Data as required to keep such information current, complete and accurate. You warrant that your Registration Data is and will continue to be accurate and current, and that you are authorized to provide your Registration Data. You authorize us to verify your Registration Data at any time. If any Registration Data that you provide is untrue, inaccurate, not current or incomplete, we retain the right, in our sole discretion, to suspend or terminate your participation in the Affiliate Platform without compensation. Solely to enable us to use information you supply us internally, so that we are not violating any rights you might have in that information, you grant to us a nonexclusive license to (i) convert such information into digital format such that it can be read, utilized and displayed by our computers or any other technology currently in existence or hereafter developed capable of utilizing digital information, and (ii) combine the information with other content provided by us in each case by any method or means or in any medium whether now known or hereafter devised.
- Non-Exclusive Appointment of Vendor And Restrictions. PayKickstart hereby grants to you a revocable, worldwide, non-exclusive, non-transferable, non-sublicensable, limited right and license (i) to participate as a Vendor in the Affiliate Platform, and (ii) to post your links, advertisements, advertising materials, documentation, and branding features including trademarks, service marks, and trade dress on the Affiliate Platform for use by Affiliates that you authorize to promote your Products, subject to the terms and conditions of this Agreement. You grant to us a revocable, worldwide, non-exclusive, limited right and license to use and display your links, advertisements, advertising materials, documentation, and branding features including trademarks, service marks, and trade dress that you select to display on the Affiliate Platform.
6.1 We use tracking methodologies for tracking usage data on the Affiliate Platform and other related analytics, including without limitation, cookies, pixels, web beacons, and other tags. You are not authorized to alter, modify, obscure, or disable any of the tracking methodologies.
6.2 As a software that provides a payment gateway service, data integrity is of utmost importance. Due to the sensitive nature of the service, we have a strict policy in terms of data retention: test mode transactions and associated records to those test transactions may be deleted and do not affect data metrics. However, any and all data collected not associated to test mode-enabled campaigns is tracked and stored permanently. It cannot be altered or deleted in any way.
6.3 You do not obtain any ownership rights in any intellectual property that is part of the Affiliate Platform or otherwise provided by us, including, without limitation, any ownership rights to intellectual property (i) embodied in our technology, website, or software, and (ii) with respect to the tracking URL(s), links, link formats, technical specifications, guidelines, or graphical artwork, or with respect to this site's domain name. All of the foregoing is protected by U.S. copyright and other intellectual property laws. Use rights for any of the foregoing are only as strictly authorized by this Agreement, or otherwise by our express written consent.
6.4 No license is granted herein for use of our tradename or trademarks, whether registered or unregistered, including without limitation, any of our logos, trade dress graphics, page headers, or icons; however, during the term of this Agreement, you are authorized to use any materials provided by us such as banner advertisement links, button links, and/or a text links which may incorporate our tradename or trademarks, but only in the form provided by us, and only for purposes of indicating PayKickstart as the source of origin. All other trademarks and other indicia or origin that may appear on the Affiliate Platform (i) are owned by third parties and not owned by us, (ii) are the property of their respective third-party owners, and (iii) are subject to the ownership and use rights of their respective third-party owners. No rights are granted by implication, estoppel or otherwise for you to use any trademarks or indicia of origin of any third parties.
6.5 This Agreement does not establish you as PayKickstart's agent or representative for any other purpose other than those purposes expressly provided herein. You are not authorized to accept orders or to enter into contracts or to create any obligation in PayKickstart's name, or to transact any business on behalf of PayKickstart.
6.6 The relationship of PayKickstart and you shall be and shall at all times remain, that of independent contractors, and not that of employer and employee, franchisor and franchisee, joint venturers, or partners. No payment of any fee or equivalent charge is required of you by PayKickstart as a condition to enter into this Agreement.
6.7 We have the right in our sole discretion to terminate your account with PayKickstart if your account has been inactive for at least 6 consecutive months while there were no logins to your account or there was no use of your account for transactions.
- Commissions, Refunds And Taxes.
7.1 For each completed sale of a Product you complete through the PayKickstart Affiliate Platform, you may pay a commission to your participating Affiliates provided that you have specified a commission in the applicable Order Form. (For purposes of clarification, you may elect to pay no commission by setting the commission in the Order Form to “0”). You will be solely responsible for paying each Affiliate the commissions earned in accordance with the applicable Order Form. You will have several options for commissions: (i) instant commissions paid instantly via PayPal, when a sale is made, or removed automatically from the affiliates’ PayPal account when refunded (we use PayPal Adaptive Payments for this option), and Affiliates must approve this from PayPal within their PayKickstart account prior to accepting Instant Commissions; (ii) delayed commissions that are released to the Affiliate either manually or automatically by you after a preselected time (e.g 30 days, or after refund period expires); and (iii) commissions sent through PayPal; (iv) commissions sent through bank wire, and (v) commissions sent by check. WE MAKE NO REPRESENTATION OR WARRANTY REGARDING ANY POTENTIAL INCOME YOU MAY MAKE.
7.2 You are responsible for specifying your refund policy in your Order Forms and for paying all refunds to your participating Affiliates. When a refund is granted, any commissions related to that sale will also be returned, automatically by the Affiliate Platform.
7.3 We will undertake commercially reasonable efforts to track purchase of Products your participating Affiliates promote for purposes of accounting for commissions earned by us.
7.4 You are solely responsible for ensuring that all taxes and related charges incident to any sale of your Products is paid in full. PayKickstart assume no responsibility for any taxes and related charges.
7.5 PayKickstart Default Tax Profiles are to be used at your sole discretion. They are to be used as a guidance. PayKickstart is not liable for any discrepancies and differences based on your local, state, and/or federal tax laws. As a Vendor, you have the ability to edit said tax profiles at your own discretion.
7.6 In the event of a dispute between affiliates regarding credit for a completed sale, we reserve the right in our sole discretion, either alone or in concert with PayKickstart, to determine which of the competing affiliates should be credited with the disputed commission. All decisions shall be final.
- Your Promotions And Restrictions.
8.1 The following are not authorized for your participating Affiliates’ promotions: (i) tool bars, banner networks, news groups, chat rooms, forums, message boards, adware, pop-up/pop-under technologies, plug-ins, spyware, adware, and (ii) devices, programs, robots, iframes, hidden pictures, redirects, spiders, computer scripts or other automated, artificial or fraudulent methods designed to appear as if a consumer is generating a lead. You are not authorized to permit your participating Affiliates to display a your website in a way this is different from the direct click by an end-user.
8.4 You are not authorized to permit your participating Affiliates to promote any Product, either directly or by combination with another product, or use advertisements or marketing materials that feature or utilize pornography, racially or ethnically discriminatory, political issues, software pirating or hacking, hate-mongering, gambling, pyramid schemes, multi-level (MLM), franchise, or business opportunities as regulated by the FTC Biz Op Rule, or otherwise use objectionable or illegal content.
8.5 You are not authorized to to promote and/or sell any Product, either directly or by combination with another product, or use advertisements or marketing materials that feature or utilize pornography, racially or ethnically discriminatory, political issues, software pirating or hacking, hate-mongering, gambling, pyramid schemes, or business opportunities as regulated by the FTC Biz Op Rule, or otherwise use objectionable or illegal content.
8.6 You acknowledge that are solely responsible for your costs and expenses associated with your promotion of Products through the Affiliate Platform, including without limitation costs associated with assisting your participating Affiliates with advertising, mailing, marketing materials, and your website operations. Your financial responsibility applies regardless of whether your promotions result in sales or not.
8.7 We do not provide legal advice or review your promotions for legal compliance, or for any purpose. You are solely responsible for the content of your promotions and your promotional efforts through your participating Affiliates. You agree that you will not permit your participating Affiliates to promote Products with any illegal material or means, including without limitation, infringement of another’s intellectual property rights such as copyrights, trade secrets, trademarks, trade dress, rights of publicity and privacy, moral rights, and rights of attribution. You agree that you will not permit your participating Affiliates to engage in promotions that are defamatory regarding other persons, products, or services.
8.8 We strongly recommend that you seek legal counsel to advise you regarding your promotions through your participating Affiliates. You agree that your promotions through your participating Affiliates will incorporate Truth in Advertising Principles, and will not incorporate any marketing or advertising methods or claims that are false, misleading, or otherwise in violation of any applicable law or regulation, including without limitation, the Federal Trade Commission Act and regulations promulgated and enforced by the Federal Trade Commission (“FTC”), the Federal Communications Commission (“FCC”), consumer protection laws of any State in the United States, or any other regulatory body whether federal or state. In addition, you agree you will not authorize promotions that do not comply with the CAN-SPAM Act, the Telephone Consumer Protection Act ("TCPA") and any applicable state laws regarding anti-spam, text messages and/or Do-Not-Call Registries.
8.9 You agree that you will not permit your participating Affiliates to suggest that they are representing PayKickstart, LLC or this website in any way, or that they are endorsed by PayKickstart, LLC or this website.
8.10 You are authorized to permit your participating Affiliates to use search engine optimization and online advertising in your marketing efforts; provided, however, you are not authorized, or to permit your participating Affiliates, to purchase or register, any keywords, search terms or other identifiers that include any principal words in our or any Vendor’s tradename, domain name, or any of our trademarks or logos, or any variation thereof ("Proprietary Terms") for use in any search engine, portal, pay-per-click advertising service, or other search, advertising, or referral service.
- Our Monitoring Rights; No Right To Control.
9.1 You acknowledge that we may crawl or otherwise monitor your participating Affiliates’ website(s) by visitation (either directly by us or by a third-party service provider) for the purpose of ensuring the quality and reliability of the links to this site. You agree that we may monitor your marketing methods, procedures, and communications. You also agree that we have the right to require you to modify or cease any of your marketing methods, procedures, and communications.
9.2 PayKickstart’s rights to monitor do not imply, and should not be construed to grant, rights for PayKickstart to control the marketing and promotional activities of Vendors and Affiliates. PayKickstart has no right or authority to control, nor will PayKickstart exercise any purported right to control, the marketing and promotional activities of Vendors and Affiliates. Vendors and Affiliates are not agents of PayKickstart.
- FTC Regulations Regarding Testimonials And Ad Claims.
10.1 The Federal Trade Commission (“FTC”) classifies your participating Affiliates as "endorsers" for Products that they market for you as an affiliate. Accordingly, they are required to disclose their "material connections" in their capacity as your affiliate. This means, among other things, that they should disclose the fact that they are compensated for promoting Products. Refer to the following for guidance: (i) our Testimonial Policy linked at the bottom of each page of this site, and (ii) the following FTC publications - (i) Guides Concerning the Use of Endorsements and Testimonials in Advertising), and (ii) Dot Com Disclosures. You agree (i) to comply with any guidelines we provide to you from time to time regarding your obligation to manage your participating Affiliates, and (ii) to monitor your participating Affiliates and to report to us promptly after discovery any Affiliate that you believe is not in compliance with FTC regulations.
10.2 The FTC and various state laws prohibit advertising that is false or misleading. Accordingly, your Affiliates are required to substantiate their advertising claims prior to dissemination to state these claims in clear language that is both true and also not misleading. Refer to the following FTC publication for guidance: Advertising and Marketing on the Internet: Rules of the Road. You agree to provide information to your Affiliates that is not false or misleading, and you agree to monitor your Affiliates and to report to us promptly after discovery any Affiliate that you believe is not in compliance.
- Consent to Release of Information. You agree that we may provide information about you and your relationship with us (i) to any governmental or regulatory agency that is investigating your affiliate marketing methods, procedures, or communications, and (ii) to any private person or organization which we believe may have a good faith claim based on your affiliate marketing promotions, methods, procedures, or communications.
- Defamation; Communications Decency Act Notice. This site is a provider of "interactive computer services" under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation and other claims arising out of any postings to this site by third parties is limited as described therein. We are not responsible for content or any other information posted to this site by third parties. We neither warrant the accuracy of such postings or exercise any editorial control over such posts, nor do we assume any legal obligation for editorial control of content posted by third parties or liability in connection with such postings, including any responsibility or liability for investigating or verifying the accuracy of any content or any other information contained in such postings.
13.1 You agree to indemnify, defend, and hold harmless PayKickstart, its related parties and affiliates, and their respective directors, officers, employees and agents from and against any and all claims, demands, suits, losses, damages, costs, fees, and expenses resulting from or arising or associated with, directly or indirectly claims brought by third parties and first party claims by PayKickstart, out of your negligence, willful misconduct, breach of any provision or representation or warranty of this Agreement, or any violation of any law or regulation in connection with your participation in the Affiliate Platform, including without limitation, regulatory enforcement actions and actions and claims of infringement of another’s intellectual property rights such as copyrights, trade secrets, trademarks, trade dress, rights of publicity and privacy, moral rights, and rights of attribution. Upon receipt of notice a claim or action for which we are entitled to indemnification, we will (i) promptly notify you in writing of the claim or action against which indemnification is sought under this Section; and (ii) provide you the opportunity to assume the entire defense and settlement of such claim or action at your cost and expense; provided, however, that we shall have the right to be represented separately by counsel of our own choosing at our own expense. No settlement may be consummated without our express written authorization, which shall not be unreasonably withheld or delayed.
13.2 If at any time we determine in our sole discretion that you are not willing or able to adequately defend and/or indemnify us in accordance with this Section, we reserve the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder.
13.3 You agree that we may, at our own discretion, and where possible, deduct our reasonable costs and expenses directly from your account from monies payable to you by us. We may also negotiate with you in good faith to deduct the amount due from your future earnings should you not have sufficient monies payable to you at the time we seek restitution.
13.4 You hereby acknowledge that Vendors are intended third party beneficiaries of the indemnification obligation of this Section.
13.5 You are fully responsible for your actions that result in demands or claims such as takedown notices or copyright infringement claims under the Digital Millennium Copyright Act (“DMCA”), as well as other actions (responding to regulatory requests, and the like) for which we may be required to respond.
13.6 This Section in no way limits our right to seek any other remedies available to it herein or under law to recover its costs and expenses for addressing such demands or claims.
- Warranty Disclaimer By PayKickstart. PAYKICKSTART MAKES NO WARRANTY TO YOU. PAYKICKSTART PROVIDES THE AFFILIATE PLATFORM AND/OR SERVICES "AS-IS" AND WITH ALL FAULTS. NEITHER PAYKICKSTART NOR ANY OF ITS SUPPLIERS MAKE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED TO YOU. PAYKICKSTART AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THIS SITE, THE AFFILIATE PLATFORM AND/OR SERVICES PROVIDED BY THIS SITE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT THIS SITE, THE AFFILIATE PLATFORM AND/OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED. FURTHER, YOU ACKNOWLEDGE AND AGREE THAT THE INTERNET IS A NETWORK OF PRIVATE AND PUBLIC NETWORKS, THAT PAYKICKSTART HAS NO CONTROL OVER THE INTERNET, AND THAT THIS SITE IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THIS SITE, THE AFFILIATE PLATFORM AND ITS SERVICES. WE MAKE NO WARRANTY THAT YOU WILL MAKE MONEY OR NOT LOSE ANY MONEY IN CONNECTION WITH YOUR PARTICIPATION IN THE AFFILIATE NETWORK. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. PARTICIPATION IN THE AFFILIATE PLATFORM IS NOT AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
- Disclaimer of Incidental and Consequential Damages. EXCEPT FOR INDEMNITIES PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Liability Cap. In no event shall the aggregate liability of PayKickstart and this site, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, including without limitation any liability for direct damages, exceed the lesser of: (i) total amount of referral fees paid to PayKickstart during the six (6) month period preceding the claim, or (ii) $1,000.
- Injunctive Relief. Your violation of this Agreement will cause irreparable harm for which money damages would be impossible to quantify and moreover would not be an adequate remedy. Accordingly, you agree that we will be entitled to see injunctive relief without the requirement of posting bond or offering proof of the inadequacy of money damages. Our right to injunctive relief is a material provision of this Agreement.
- Disclosure of Personal Information. You agree to hold any personal information that we may disclose regarding a referred transaction in strictest confidence and to use such information only for purposes of monitoring that specific transaction.
- Email And Telephone/Text Messages. You hereby consent to our sending you periodic emails and pre-recorded phone messages and /or text messages to your designated phone number regarding the Affiliate Platform and the operation of this site.
- Term and Termination.
20.1 The term of this Agreement will begin your acceptance of this Agreement and will end when terminated by either party. Either you or we may terminate this Agreement at any time for convenience, with or without cause, by giving the non-terminating party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to this site and all of our trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you in connection with the Platform.
20.2 Notwithstanding anything to the contrary contained herein, if we terminate this Agreement due to our determination that (i) you have violated the material terms of this Agreement, or that (ii) your marketing practices appear to us to be in violation of FTC regulations, or any other law or regulation of any regulatory authority, we may alone or in concert with PayKickstart cause you to forfeit any commissions you may have earned under this Agreement.
- Notices. We may give notice to you by means of (i) a general notice in your account information, (ii) by electronic mail to your e-mail address on record in your Registration Data, or (iii) by written communication sent by first class mail or pre-paid post to your address on record in your Registration Data. Such notice shall be deemed to have been given upon the expiration of forty eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to us (such notice shall be deemed given when received by us) at any time by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us as follows: PayKickstart, LLC, 2159 Glebe Street, Suite 270, Carmel, IN 46032, in either case, addressed to the attention of "President of the Company". Notices will not be effective unless sent in accordance with the above requirements.
- Force Majeure. We shall not be liable for damages for any delay or failure of delivery arising out of causes beyond our reasonable control and without our fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures.
- Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in Carmel, Indiana and may be conducted by telephone or online. The arbitrator shall apply the laws of the state of Indiana to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney's fees and costs up to $1000.00.
- Jurisdiction and Venue; Applicable Law. The courts of Hamilton County, Indiana and the U.S. District Court for the Northern District of Indiana shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement. The laws of the state of Indiana shall apply to all issues in dispute, excluding its rules regarding conflicts of law.
- Continuing Obligations. The following obligations shall survive the expiration or termination hereof and the distribution grace period provided above: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (iv) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (v) the payment of taxes, duties, or any money hereunder.
- Miscellaneous. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
Material Modifications Since July 14th 2015 - none.