Please read the following Affiliate Agreement carefully. By participating in the Affiliate Program, you hereby agree to be bound by the terms and all terms incorporated herein by reference. If you do not expressly agree to all of the terms and conditions, then please do not access or use our sites or our services.
This Affiliate Agreement (the “Agreement”) constitutes a legal agreement between the Affiliate Program participant (referred to as “Marketing Affiliate” or “MA”) and Instasize, Inc., a Utah corporation (“Company”), the legal owner of the domain name and website Instasize.com and the mobile app InstaSize. You acknowledge, agree to, and are bound by these terms and conditions by signing up and participating in the Affiliate Program.
You agree to participate in the “Affiliate Program”, which permits you to monetize your website, social media user-generated content, or online software application (referred herein as your “Site” or “Sites”) by placing on your Site, links to the Company’s mobile application (the “Company App”).
Company will provide a unique URL, which you will use to market the Technology and/or Company App. When a Customer navigates through such unique URL, a cookie (or other similar tracking technology such as a deep link) will be set in the Customer’s browser. In the event that a Customer has multiple cookies, the most recently acquired cookie will determine whether you are credited with the sale. The links on your Site must properly use the special tagged link formats provided by Company and comply with this Agreement (collectively, the foregoing is referred to as “Special Links” herein).
When Customers of Company navigate through the Special Links to purchase the Technology, you may receive Affiliate Fees for Qualifying Revenue. In order to facilitate the advertisement and/or marketing of the Technology, Company may make available to you data, images, text, link formats, widgets, links, marketing content, and other linking tools, application program interfaces, and other information in connection with the Affiliate Program (“Content”).
Company will pay Affiliate Fees in connection with “Qualifying Purchases”, which (subject to the exclusions herein) occur when all the following occur:
Notwithstanding the foregoing, Qualifying Purchases are disqualified whenever they occur in connection with a violation of this Agreement or any other terms, conditions, specifications, statements, and policies that Company may issue from time to time that apply to the Affiliate Program.
Additionally, the following purchases that would otherwise be Qualified Purchases are disqualified and excluded from the Affiliate Program:
For each Qualifying Purchase, the corresponding “Qualifying Revenue” is equal to the amount actually received by the Company from such Qualifying Purchase, less any taxes, service charges, rebates, credit card processing fees, and bad debt.
Subject to the limitations described in this Agreement, Company will pay you fees described in this Section (”Affiliate Fees”), calculated as a percentage of Qualifying Revenue, as follows: Fifty Percent (50%) of the Net Subscription Revenue.
“Net Subscription Revenue” means the total Qualifying Revenue actually received by Company from Customers, less any: (a) billing and payments costs and all costs associated with transactions; (b) actual tax amounts related to the generation of such gross revenues to be paid to local, state, federal, and foreign entities, including VAT and sales taxes; and (c) third-party host administrator fees or charges associated with the Qualifying Revenue (for example, fees levied as part of any fee-sharing agreements with the Apple App Store, the Google Play store, etc.).
This Agreement shall automatically begin when you sign up to participate in the Affiliate Program and are accepted by Company, and shall remain in effect until terminated by you or Company as provided in this Agreement.
Company grants to you the right to advertise, to market and to facilitate the sale of the Technology to individuals or persons (the “Customers” herein) for the Customers’ personal use only.
You must clearly state the following on your Site or any other location where Company may authorize the display or other use of the Content: “We are a participant in the InstaSize Affiliate Program, an affiliate advertising program designed to provide a means for us to earn fees by linking to InstaSize.com and the InstaSize mobile app.” Except for the aforementioned disclosure, you will not make any public communication with respect to this Agreement or its participation in the Affiliate Program.
You shall protect copyrights, tradenames, trademarks, service marks, trade secrets and other confidential proprietary rights and information of Company and its affiliates and report promptly any infringements or suspected infringements of which you become aware. You agree to not remove or alter, in any manner, any copyright, trademark or other proprietary notices contained in the Technology.
Company agrees to facilitate the marketing of the Technology and Company App by you in accordance with the terms and conditions of this Agreement.
Company shall not specify your business practices, nor regulate the manner in which you shall operate your business, provided that you (a) conduct business in a manner that reflects favorably at all times on the Technology sold and the good name, goodwill and reputation of Company and its affiliates; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to Company and/or its affiliates, the Technology or the public, including but not limited to disparagement of Company or the Technology; and (c) make no false or misleading representation with respect to Company or the Technology.
Affiliate Fees payable to you will be paid on a monthly basis, within 30 days after the end of each calendar month in which Company receives Qualifying Revenue from the third-party host administrator. Company will send payment to you via PayPal, or other similar online payment system chosen by Company, in the amount of the earned Affiliate Fees in accordance with the payment information specified by you in writing. To ensure proper payment, you are responsible for providing and maintaining accurate contact and payment information. Company will not be obligated to make a payment of Affiliate Fees if the total amount to be paid to you under this Agreement is less than Twenty Dollars ($20) (the 'Payment Threshold'), and may instead accrue such payment obligation until such time as its overall obligation to you is at least the Payment Threshold. If any excess payment has been made to you for any reason whatsoever, Company reserves the right to adjust or offset the same against any subsequent fees payable to you under this Agreement.
Company may deduct or withhold any federal, state or local taxes that Company may be legally obligated to deduct or withhold from any payment made to you under this Agreement, and payment to you as reduced by such deductions or withholdings will constitute full payment and settlement of such payment under this Agreement. From time to time, Company may request tax information for reporting purposes. You must provide Company with any forms, documents, or certifications as may be required for Company to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement. If Company requests tax information from you and you do not provide such information, Company reserves the right to hold your fees until you provide this information or otherwise satisfy Company that you are not a person from whom Company is required to obtain tax information.
Company reserves the right to change its process and/or fees, from time to time, in its sole and absolute discretion. All prices and/or fees may be adjusted without prior notice to you.
Any tradenames, trademarks or service marks, which Company may obtain with regard to the Technology, are the sole property of Company and/or its Affiliates. Company hereby grants you, during the term of this Agreement, the right to use Company and/or Company trade names, trademarks or service marks on Technology or in advertising or promotion relating directly to the Technology. Any use of such tradenames, trademarks or service marks must reference that these tradenames, trademarks or service marks are proprietary to Company and/or its affiliates.
You acknowledge that you and your customers receive no title to the Technology. Title to the Technology and all copyrights in Technology shall remain with Company and/or its affiliates.
Company agrees to defend or, at its option, settle any claim or action against you to the extent arising from a third-party claim that a permitted use of the Technology by the end-users infringes any U.S. patent or copyright, provided Company has control of such defense or settlement negotiations and you give Company prompt notice of any such claim and provide reasonable assistance in your defense. Company will not be liable under this Paragraph if the infringement arises out of your activities after Company has notified you that Company believes in good faith that your activities will result in such infringement. The foregoing states the entire liability of Company with respect to infringement of intellectual property rights.
You shall be deemed to be an independent contractor in your relationship with Company, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Company or Company’s respective affiliates. No debts or obligations shall be incurred by either party in the other party’s name. You have no authority to make or accept any offers or representations on Company or Company’s affiliates’ behalf. You must not make any statement, whether on your Site or otherwise, that contradicts anything in this Paragraph. It is further agreed that this Agreement shall not bring Company under the provisions of any local, state, provincial, federal, national, and international regulation wherein coverage thereunder is based upon the relationship of employer and employee.
You must comply with this Agreement, including all terms and conditions herein, to participate in the Affiliate Program and to receive Affiliate Fees. You must promptly provide Company with any information reasonably requested in order to verify your compliance with this Agreement.
If you are in violation of this Agreement, then, in addition to any other rights or remedies available, Company reserves the right to withhold any and all fees otherwise payable to you under this Agreement, whether or not directly related to such violation.
Company does not make any representation, warranty, or covenant regarding the amount of traffic or fees you can expect at any time in connection with the Affiliate Program or under this Agreement, and Company will not be liable for any actions taken by you based on your expectation of traffic on your Site or Affiliate Fees.
You agree that any and all warranties made to your customers shall be made only by you. You acknowledge and agree that you will make no representations to your customers with respect to any warranty made by Company. You hereby agree to indemnify and hold Company harmless for any loss, damage, claim or action resulting from your failure to comply with any of your obligations under this Agreement. You will be solely responsible for any claims, warranties or representations made by you and your representatives or agents.
You further represent, warrant, and covenant that: (a) you will maintain and operate your Site in accordance with this Agreement; (b) neither your participation in the Affiliate Program nor your creation, maintenance, or operation of the Site will violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any applicable governmental authority (including all such rules governing communications, data protection, advertising, and marketing) or any contract or other binding obligation to any third party; (c) you are lawfully able to enter into contracts; (d) you have independently evaluated the desirability of participating in the Affiliate Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement; (e) you will not participate in the Affiliate Program if you are the subject of United States sanctions or of sanctions consistent with United States law imposed by the governments of the country where you are using any Service Offering; (f) you will comply with all U.S. or other export and re-export restrictions that may apply to goods, software, technology and services; and (g) the information you provide in connection with the Affiliate Program is accurate and complete at all times. You can update its information by providing a written notice to Company any such changes and/or additions to your information.
THE AFFILIATE PROGRAM, THE COMPANY APP, ANY PRODUCTS AND SERVICES OFFERED IN THE COMPANY APP, ANY SPECIAL LINKS, LINK FORMATS, CONTENT, THE TECHNOLOGY ADVERTISING API, DATA FEED, TECHNOLOGY ADVERTISING CONTENT, COMPANY’S DOMAIN NAMES, TRADEMARKS AND LOGOS, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INTELLECTUAL PROPERTIES RIGHTS, INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF COMPANY OR COMPANY’S AFFILIATES OR LICENSORS IN CONNECTION WITH THE AFFILIATE PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER COMPANY NOR ANY OF COMPANY’S AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE OFFERINGS. COMPANY AND COMPANY’S AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. COMPANY MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER COMPANY NOR ANY OF COMPANY’S AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER COMPANY NOR ANY OF COMPANY’S AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, VIRUSES, MALICIOUS SOFTWARE, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM COMPANY OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE AFFILIATE PROGRAM, CONTENT, THE TECHNOLOGY ADVERTISING API, DATA FEED, TECHNOLOGY ADVERTISING CONTENT, PROGRAM POLICIES, THE AFFILIATE SITE, OR ANY COMPANY APP WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, NEITHER COMPANY NOR ANY OF COMPANY’S AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (1) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (2) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH ITS PARTICIPATION IN THE AFFILIATE PROGRAM, OR (3) ANY TERMINATION OR SUSPENSION OF YOUR PARTICIPATION IN THE AFFILIATE PROGRAM. NOTHING IN THIS SECTION WILL OPERATE TO EXCLUDE OR LIMIT WARRANTIES, LIABILITIES, OR REPRESENTATIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
BY PARTICIPATING IN THE AFFILIATE PROGRAM, YOU ACCEPT THE TERMS OF SERVICE OF COMPANY IN THEIR ENTIRETY AND AGREE THAT NEITHER COMPANY NOR ANY OF COMPANY’S AFFILIATES OR LICENSORS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THE SERVICE OFFERINGS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, COMPANY’S AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THIS SECTION WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR SITE OR YOUR VIOLATION OF THIS AGREEMENT, AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD COMPANY, COMPANY’S AFFILIATES AND LICENSORS, AND COMPANY’S EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEY FEES) RELATING TO (A) YOUR SITE OR ANY MATERIALS THAT APPEAR ON YOUR SITE, (B) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR SITE OR ANY MATERIALS THAT APPEAR ON OR WITHIN YOUR SITE, (C) YOUR USE OF ANY CONTENT, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THIS AGREEMENT OR APPLICABLE LAW, (D) YOUR VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT (INCLUDING ANY PROGRAM POLICY), OR (E) YOU OR YOUR EMPLOYEES' OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT.
This Agreement may be terminated by either you or Company at any time, with or without cause, by giving the other party written notice of termination, as provided herein.
Company may hold accrued unpaid advertising fees generated under this Agreement for a reasonable period of time following termination to ensure that the correct amount is paid to you.
No termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination. Upon the termination or cancellation of this Agreement for any reason, all rights and obligations of the parties will be extinguished, including any and all licenses granted in connection with this Agreement, except that the rights and obligations of the parties under Sections titled Your Duties and Duties of Company in this Agreement, together with any payable but unpaid payment obligations under this Agreement, will survive the termination of this Agreement, including: (a) except as otherwise provided herein, all obligations of the non-breaching party, should termination be due to breach, shall immediately cease; (b) you shall return any and all material related to the Technology in your possession or under your control to Company within 10 days following the termination of this Agreement; (c) you shall immediately cease advertising, marketing, and promoting the Technology and you shall cease using the trade names, trademarks, service marks and any other proprietary rights of Company; (d) you acknowledge and agree that, in the event of a breach or threatened breach by you of the provisions of this Agreement, no adequate remedy at law in money damages will be available to Company that will fairly compensate it and therefore Company will be entitled to an injunction against any such breach or threatened breach by you.
Any dispute relating in any way to the Affiliate Program or this Agreement will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of the state of Utah, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Company.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Company’s registered agent, Gustin Law Firm, P.C., 38 West 13800 South, Suite 300, Draper, Utah 84020. Arbitration, if any, will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. Company may seek attorney fees and costs related to arbitration, including attorney fees and costs should the arbitrator determine that such claims to be frivolous. You or Company may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where Company is located or at another mutually agreed location.
You and Company each agrees that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, you and Company each waive any right to a jury trial. Notwithstanding anything to the contrary in this Agreement, Company may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Company or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that Company’s rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
The Customers of Company are not, by virtue of your participation in the Affiliate Program, your customers. You shall not handle or address any contact with any of the Customers, and, if contacted by any of the Customers for a matter relating to the interaction with the Company App, you will inform such Customers that the Customer must contact Company to address any such issues.
“Confidential Information” includes: (a) the Technology (b) any personally identifiable data or information regarding any end user; (c) any and all information disclosed by Company to you, in whatever format, that is either identified as or would reasonably be understood to be confidential and/or proprietary; (d) any notes, extracts, analyses or materials prepared by you which are copies of or derivative works of Confidential Information or from which Confidential Information can be inferred or otherwise understood; and (e) the terms and conditions of this Agreement.
You will make no use of Confidential Information for any purpose except as expressly authorized by this Agreement. Except as expressly provided in this Agreement, you will not disclose Confidential Information to any third party and will protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event with less than reasonable care. Except as expressly provided in this Agreement, you will not use, make or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of Company. In the event that you are required to disclose Confidential Information pursuant to law, you will notify Company of the required disclosure with sufficient time for Company to seek relief, will cooperate with Company in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.
You will at all times during the term of this Agreement maintain appropriate technical and organizational measures to protect any end-user data that you collect, access or process in connection with this Agreement against unauthorized or unlawful use, disclosure, processing or alteration. You will act only on Company's instructions in relation to the collection, use, disclosure and processing of any such end-user data, but in all instances in accordance with all applicable laws, rules and regulations. You acknowledge and agree that the information associated with any purchases through the Affiliate Program belongs to the Company.
By accepting this Agreement, you hereby consent to Company: (a) sending you emails relating to the Affiliate Program from time to time, (b) monitoring, recording, using, and disclosing information about your Site and users of your Site that Company obtains in connection with your display of Special Links and Content, (c) reviewing, monitoring, crawling, and otherwise investigating your Site to verify compliance with this Agreement, and (d) using, reproducing, distributing, and displaying your implementation of Content displayed on your Site as examples of best practices in Company’s educational, marketing and/or informative materials
You acknowledge and agree that (a) Company and Company’s affiliates may at any time (directly or indirectly) solicit traffic on terms that may differ from those contained in this Agreement, (b) Company and Company’s affiliates may at any time (directly or indirectly) operate websites or applications that are similar to or compete with your Site, (c) Company’s failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of Company’s right to subsequently enforce such provision or any other provision of this Agreement, and
(d) any determinations or updates that may be made by Company, any actions that may be taken by Company, and any approvals that may be given by Company under this Agreement can be made, taken, or given in Company’s sole discretion and are only effective if provided in writing by an authorized representative of Company.
You may not assign, sell, lease or otherwise transfer in whole or in part any of the rights granted pursuant to this Agreement, by operation of law or otherwise, without the express prior written approval of Company. Subject to the aforementioned restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
Company reserves the right to modify any of the terms and conditions contained in this Agreement at any time and in Company’s sole discretion by sending a change notice of such modification or revised Agreement to you by email to the primary email address then-currently associated with you. YOUR CONTINUED PARTICIPATION IN THE AFFILIATE PROGRAM FOLLOWING THE EFFECTIVE DATE OF SUCH NOTICE WILL CONSTITUTE YOUR ACCEPTANCE OF ANY SUCH MODIFICATION. IF ANY MODIFICATION IS UNACCEPTABLE, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
No amendment, change or variance from this Agreement by you shall be binding upon Company unless executed in writing and signed by an authorized representative of Company.
Should any part of this Agreement, for any reason, be declared invalid by a court of competent jurisdiction, such determination shall be not affect the validity of any remaining portion, and such remaining portion shall remain in force and effect as if the invalid portion were eliminated.
Except as otherwise provided herein, any notice to Company required under this Agreement shall be deemed to have been given when hand-delivered or on the date of mailing when mailed by standard mail, postage prepaid, and addressed to Company at the address designated below, or such other address as the Company may from time to time direct in writing.
Instasize, Inc.
PO BOX 539
Draper, UT 84020
This Agreement is accepted by Company in the State of Utah and shall be governed by and construed in accordance with the laws thereof, which laws shall prevail in the event of any conflict. For such limited purpose, you consent to the personal jurisdiction of any court of competent jurisdiction in the State of Utah. If any legal action or proceeding is initiated, Company, if prevailing, shall be entitled to all attorney fees, court costs, and expenses in addition to any other relief to which Company may be entitled.
You acknowledge that any breach or threatened breach of this Agreement involving an unauthorized use of Confidential Information or Company’s and/or its affiliate’s intellectual property will result in irreparable harm to Company and/or its affiliate for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, Company and/or its affiliate will be entitled to seek injunctive or other equitable relief, as appropriate, and you waive the right to require Company and/or its affiliate to post a bond. If Company and/or its affiliate seek any equitable remedies, it will not be precluded or prevented from seeking remedies at law, nor will Company and/or its affiliate be deemed to have made an election of remedies.
This Agreement contains the entire agreement between the parties, and no representations, statements or inducements, oral or written, not contained herein, shall be binding upon the parties. Company expressly disclaims the making of, and you acknowledge that you have not received a warranty or guaranty, express or implied, as to the potential volume, profits or success of the activities contemplated by this Agreement.