BY CHECKING THE BOX, SIGNING THE SIGNATURE LINE, OR CLICKING THE "REGISTER" BUTTON, AS APPLICABLE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR BY CONTINUING TO PARTICIPATE IN THE AFFILIATE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE SITE, YOU (A) AGREE TO BE BOUND BY THIS AGREEMENT; (B) ACKNOWLEDGE AND AGREE THAT 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; AND (C) HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS AGREEMENT, INCLUDING ANY AFFILIATE PROGRAM PARTICIPATION REQUIREMENTS. IN ADDITION, IF THIS AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS AGREEMENT.
This Affiliate Agreement (“Agreement”) is entered into by and between LeadPie, a Delaware Limited Liability Company (“LeadPie”), and you, the company or the individual (individually referred to as “Affiliate” or “Party” and collectively “Parties”) in connection with your use of the affiliate network owned and operated by LeadPie LLC (the “Network”), which is featured and accessible at www.leadpier.com . This agreement sets forth the Parties’ rights and obligations regarding LeadPie’s affiliate program.
WHEREAS, LeadPie provides Affiliate the opportunity to advertise for a number of niche-specific websites in the areas of payday loans, and other similar sites (“Network”);
WHEREAS, Affiliate desires drive traffic to LeadPie’s Network in exchange for compensation, and;
WHEREAS, LeadPie desires to compensate Affiliate for the business provided to LeadPie’s Network;
NOW THEREFORE, in exchange for the mutual promises contained herein, and for good and valuable consideration the sufficiency and receipt of which is hereby acknowledged, the Parties agree to be legally bound to the terms of this Agreement.
- Affiliate represents and warrants that it is a duly organized business entity authorized under the laws of its place of organization or incorporation, that it is not prohibited from entering into this Agreement by the terms of any preexisting agreement, and that any individual signing this Agreement on behalf of Affiliate is an authorized agent of Affiliate (“Signing Agent”). Affiliate represents and warrants that Signing Agent has the authority to bind Affiliate to the terms of this Agreement.
- Affiliate represents and warrants its execution, delivery and performance of this Agreement has been and remains duly authorized by all necessary corporate action and does not contravene any provision of its articles or certificate of incorporation, bylaws (or equivalent constituent documents), or any law, regulation, rule, decree, order, judgment, or contractual restriction binding on it or its assets.
- Affiliate represents and warrants all consents, authorizations, approvals, clearances, notifications, reports, and registrations required for the due execution, delivery, and performance of this Agreement have been obtained from, or as the case may be, filed with, the relevant authorities of the jurisdiction of its incorporation and of the United States of America and remain in full force and effect and all conditions thereof have been and will be duly complied with and no other action by, and no notice to or filing with, any governmental, judicial, or regulatory authority or body of the jurisdiction of its incorporation or of the United States of America is required for such execution, delivery, or performance.
- Affiliate represents and warrants it has the necessary knowledge, skills, expertise, and training to perform its duties and provide the services under the terms of this Agreement;
- Affiliate represents and warrants all services to be performed under the terms of this Agreement will be carried out in a diligent, prompt, and professional manner by individuals with the necessary knowledge, skills, expertise, and training to provide the services.
- Affiliate represents and warrants that its activities under this Agreement and the receipt of Leads does not violate any law, regulation, ordinance, statute, or treaty that is applicable within Affiliate’s jurisdiction, including the OLA Best Practices, the CAN-SPAM Act, Telephone Consumer Protection Act, and Computer Fraud and Abuse Act.
2. License to LeadPie Network
- LeadPie hereby grants Affiliate with a limited, revocable, and non-exclusive right to engage in marketing and promotional campaigns offered through LeadPie’s Network (“Campaigns”) and to use the Campaign Materials (as defined below) in connection with Affiliate’s efforts to generate Leads or other Qualifying Transactions in connection with such Campaigns.
- Affiliate is only granted the limited license above if it uses the Campaign materials with the bonafide good faith intention to create Qualifying Transactions.
- Affiliate may also receive bonus payments for referring individuals or business entities that become Affiliates within LeadPie’s network, in the sole and absolute discretion of LeadPie, as further detailed by this Agreement.
3. Use of LeadPie Campaign Materials
- LeadPie will provide Affiliate with the following forms of advertisements and or marketing materials: individual hyperlink, banner ads, email templates, and other similar materials (“Campaign Materials”). Affiliate’s use of the Campaign Materials is subject to the limited license above.
- LeadPie, in its sole and absolute discretion may terminate Affiliate’s license to use the Campaign Material at any time and for any reason.
- Prior written consent by LeadPie is required before Affiliate may publish a private feed.
- LeadPie may wish to change, update, alter, modify, or otherwise amend the Campaign Materials at any time and without prior notice. Affiliate is required to use the most recent version of any and all Campaign Materials at all times.
- Affiliate may not alter the Campaign Materials. Violation of this provision can subject Affiliate to immediate termination of this Agreement and removal from LeadPie’s Network.
- LeadPie is the owner of all intellectual property rights to all Campaign Materials and any other information shared with Affiliate under the terms of this Agreement, including but not limited to all trademarks, copyrights, and patents, whether registered or unregistered, and all trade secrets, ideas, designs, business methods, creative works, processes, and data, including all data created by Affiliate in connection with this Agreement (collectively “Intellectual Property Rights”).
- Affiliate may not export, display, or share any data created as a result of this Agreement without the prior written consent of LeadPie.
- LeadPie, in its sole and absolute discretion, may direct placement of the Campaign Materials. Unless such direction is provided, Affiliate may display the Campaign Materials, subject to this Agreement and applicable state, federal, and local rules and regulations, on websites owned or operated by Affiliate (“Affiliate Websites”) or via email lists and/or databases owned or accessible to Affiliate (“Affiliate Databases”).
- LeadPie retains and reserves the right to require the alteration or modification of Affiliate’s use of the Campaign Materials.
- Affiliate agrees it must immediately remove Campaign Materials from Affiliate Websites and cease and desist the use of Campaign Materials in connection with Affiliate Databases upon termination or expiration of this Agreement.
4. Limitations on Use of Campaign Materials
- Affiliate is solely responsible for operation, creation, updating, and maintenance of Affiliate Websites and Affiliate Databases.
- Affiliate shall not, or permit or allow any other person or entity to:
- Use any deceptive or misleading methods or tactics, including the use of any robot, program, script or any similar method, to inflate the number or amount of Qualifying Transactions;
- Market to IP address that have bot activity, pay-per-view or pay-per-surf programs, or obtain otherwise obtain Qualifying Transactions from public or open proxy servers;
- Delivering advertisements to a user through controlling or forceful means such that the user cannot close the advertisement without terminating browser sessions or powering off the computer;
- Without consent, install on another’s computer any programs or software. If consent is provided, Affiliate must include easily understandable instruction on how to disable the software or program, and;
- Infringe or violate the rights, including intellectual property rights, of any third party.
- Display of the Campaign Materials remains subject to LeadPie’s approval and in any event, shall not be associated with or in connection to:
- Pornographic material;
- Racial, sexist, political, religious discrimination, hate words, or other objectionable content;
- Offensive, graphic, or explicit displays of violence, death, injury or obscenity;
- Defamatory statements regarding persons, businesses, or other entities;
- Threats of physical harm to others;
- Promotion of unlicensed or unregulated investment opportunities;
- Promotion of materials connected with illegal purposes;
- Is unfair, deceptive, or misleading.
- Affiliate understands and agrees the use of Campaign Materials is intended to generate leads for LeadPie and LeadPie’s advertisers and Affiliate may not use the Campaign Material or the leads obtained therefrom for any other purpose.
All Campaign Materials include a code (“Tracking Code”) to track the transactions across LeadPie’s Network. Affiliate is prohibited from altering, avoiding, bypassing, or otherwise circumventing the Tracking Code. All of LeadPie’s decisions based on the Tracking Code are final and in LeadPie’s sole discretion.
- Payment to Affiliate based on their Qualifying Transactions (“Affiliate Commissions”) are determined through the tracking code described above. LeadPie shall provide Affiliate access to data obtained as a result of the tracking code on LeadPier.com.
- Affiliate bears the sole responsibility of contesting the amount of any Affiliate Commissions with LeadPie. Failure to contest the amount of Affiliate Commissions within five (5) business days of the date the Data is posted to LeadPier.com will preclude Affiliate from contesting or otherwise disagreeing with the amount. Should Affiliate wish to complain or contest the amount of the Affiliate Commission, Affiliate must submit its complaint in writing to LeadPie within five (5) business days of the date the Data is posted to LeadPie.com.
- If, for any reason LeadPie is unable to obtain and provide accurate Data, LeadPie shall compensate Affiliate based on the average of Affiliate’s Qualifying Transactions over the preceding three-month period, or if such Data is not available, in the LeadPie’s sole and absolute discretion.
- LeadPie shall pay Affiliate Commissions every Monday (but the first payment to new Affiliates is delayed one week).
- Affiliate may be required to provide sufficient identifying tax information to use LeadPie’s Network as an Affiliate and/or to receive payment of Affiliate Commissions.
- LeadPie reserves the right to withhold Affiliate Commissions, in its sole discretion, where the Advertiser has not met its obligations to pay LeadPie or if off-set, or other delinquent payment issues arise with Advertiser.
- Affiliate Commissions need not be paid, in LeadPie’s sole and absolute discretion, when LeadPie determines Affiliate has breached this Agreement in any manner. Upon termination, and subject to LeadPie’s right to reduce or eliminate Commissions as contained in this Agreement, LeadPie shall pay Affiliate the remaining amount accrued in the Affiliate account.
- All compensation made under this Agreement will be paid without deductions or withholding. Affiliate will report as income to the appropriate governmental agencies all compensation received pursuant to this Agreement and will pay to such agencies all taxes that Affiliate is required to pay by law. Affiliate understands and agrees that LeadPie will not be responsible for paying any taxes required by law to be paid by Affiliate.
- LeadPie reserved the right to evaluate all data received by Affiliate to determine, in the sole discretion of LeadPie, that any Lead provided by Affiliate to LeadPie constitutes a “Valid Lead”. A “Valid Lead” means an individual person that: (a) is not a computer generated user, such as a robot, spider, computer script or other automated, artificial, or fraudulent method designed to appear like an individual, live person, and (b) has submitted information that meets all of LeadPie’s criteria. LeadPie shall have no obligation to pay for any data that it determines, in its sole discretion, does not constitute a Valid Lead (“Invalid Lead”). If, after tendering Payment, LeadPie (or the end buyer, as appropriate) determines that a Lead does not constitute a Valid Lead, Affiliate shall refund LeadPie the amount paid for the Invalid Lead, or b) LeadPie shall reduce or withhold any future payment to Affiliate up to the amount paid for any previous Invalid Leads.
- There will be no responsibility to tender payments for (i) Leads that are uploaded and sold after this agreement terminates; (ii) Leads that do not satisfy the Guidelines, (iii) Leads that are not recorded due to your error or intentional interference; (iv) Leads in instances of fraud, material misconduct, or would be deemed to materially breach this agreement.
Guidelines. Leads must satisfy all LeadPie's traffic generation guidelines in this subsection (the "Guidelines") before you may offer it through the LeadPie lead generation service. Any lead that does not comply with the Guidelines will be an invalid lead for which no payment will be tendered to you and LeadPie may not use the lead for any commercial purposes whatsoever.
- Delivery. The Traffic must comply with all Technical specifications communicated to you by LeadPie from time to time.
- Self-Generation. Information contained in a Lead must be submitted directly to you by that Data Subject and may not be generated through a form or a site owned by an entity other than you or LeadPie.
- Completeness. Leads must include all required fields as specified by the Technical specifications and you may not use default values for any of those required fields.
- Data Integrity. You must ensure that the lead file includes only information that has been input by the Data Subject and must make commercially reasonable efforts to ensure that information provided is accurate. A Lead may be rejected or later invalidated based an inability to verify the accuracy of certain information, such as the name and phone number. In such event LeadPie will not use the lead for any commercial purposes whatsoever. In addition, you must provide accurate timestamp information that is required to determine the age of the Lead and, to the extent the Lead is a non-exclusive Lead (as specified by you), you must provide accurate information regarding the number of times the Lead has been sold previously and information that will allow LeadPie to avoid selling the Lead to a Merchant who has previously received the Lead.
- Duplication. Duplicate Leads may not be sent to LeadPie within thirty (30) days of each other. To the extent that you have a high percentage of duplicates, LeadPie reserves the right to extend the duplicate review period for whatever period LeadPie deems necessary. LeadPie may not use nor provide to any third party for use any Lead or data derived therefrom unless LeadPie has fully compensated you under the terms of the applicable payment per IO or provision. In the event LeadPie uses the lead for a non-internal and/or commercial purpose then LeadPie shall pay you for such lead.
- Incentivized Leads. You may not provide Leads that have been generated by misleading the Data Subject or by providing the Data Subject a reason to believe that they will receive a prize, gift, payment or pecuniary benefit of any kind in exchange for completing a lead form and generating a Lead.
7. Payment Calculation
- Affiliate agrees and understands the amount of payment for leads and/or “Sold Leads,” being defined as leads actually purchased by LeadPie’s Advertisers, is within the sole discretion of LeadPie, but in general, the payment amount will be commensurate with the quality of the lead and/or Sold Lead provided.
- Affiliate agrees and understands LeadPie’s Advertisers are responsible for determining the quality of the lead and/or Sold Lead, hereafter referred to as a “Dynamic Payout” system.
8. Referral Revenue
Affiliates are encouraged to invite additional Affiliates to LeadPie’s Network (“Referring Affiliate”). As a benefit, Affiliates that refer an individual or business that become an active Affiliate (“Referred Affiliate”) in the Network shall earn additional compensation. Specifically, the Referring Affiliate shall earn 5% of the gross revenue LeadPie obtains from the Referred Affiliate, payable subject to the terms and conditions of this Agreement.
Any third party acting on behalf of Affiliate in connection with this Agreement or otherwise acting on Affiliate’s behalf in connection with LeadPie’s Network is classified as a Sub-Affiliate. Use of any Sub-Affiliates requires the prior express written consent of LeadPie. LeadPie reserves its right to approve, disapprove, suspend, terminate, or ban any Sub-Affiliate for any reason in LeadPie’s sole and absolute discretion. All Sub-Affiliates must comply with the obligations required of the Affiliate under this Agreement. Affiliate shall be liable for any and all of the acts and/or omissions of its Sub-Affiliates.
10. Restrictions on Affiliate Databases and Email Marketing
- Email marketing of LeadPie’s Campaign Materials places a special burden on Affiliates. Specifically, if LeadPie receives or is otherwise informed of a complaint regarding an Affiliate’s use of email marketing, Affiliate is required to immediately produce the end user’s Affirmative Consent to receive emails from Affiliate, including but not limited to, the website used to provide the Affirmative Consent, the date and time such consent was granted, and any other records reasonably related to Affiliate email marketing, Affiliate Database, and Affiliate Website.
- All emails sent by or on behalf of Affiliate must comply with this Agreement and all applicable laws, rules, and regulations, including the OLA Best Practices, CAN-SPAM Act and all FTC regulations. If more restrictive laws, rules, or regulations subsequently come into force, such laws, rules, and regulations are incorporated into this Agreement and must be followed;
- Affiliate is prohibited from randomly sending emails arising out of or related to this Agreement;
- All emails sent by or on behalf of Affiliate must:
- Contain no misleading headers or use deceptive or confusing methods to falsify header information, email accounts, IP addresses;
- Contain no false or misleading subject lines;
- Contain clear and conspicuously places disclaimers identifying the material as an advertisement, including identifying information on the sender (including physical postal address);
- Contain opt-out procedures that permit the end user to unsubscribe consistent with applicable law, including an opt-out link that is functional for at least thirty (30) days from the date the email was sent.
- Validate and process unsubscribe or opt-out notifications as soon as possible but no longer than ten (10) days from the date of the request;
- Notifying LeadPie to any complaint or investigation regarding its use of email marketing. Affiliate is solely responsible for all such complaints;
- Respond to end user complaints regarding emails arising out of or in relation to this Agreement within seventy-two (72) hours of the Complaint being made.
- LeadPie retains the right, in its sole and absolute discretion, to withhold Affiliate Commissions if it believes an end user complaint has not been satisfactorily resolved or otherwise concluded.
- Affiliate’s breach of any provisions in this section can give LeadPie the ability, in its sole and absolute discretion, to terminate this Agreement and withhold and/or forfeit any Affiliate Commissions owed to Affiliate.
Affiliate understands and agrees that LeadPie’s business is global in nature and that its reasonable competitive business interests extend across the world. Affiliate further understands and agrees that any and all goodwill associated with any customers or prospective customers, accounts, or business partners belongs exclusively to LeadPie. In order to protect LeadPie’s legitimate business interests, Affiliate agrees that during its contractual relationship with LeadPie and for a period of two (2) years following the termination of Affiliate’s contractual relationship with LeadPie for any reason (whether such termination is voluntary or involuntary) Affiliate will not directly or indirectly own, operate, or control, or participate in the ownership, operation, or control of any business that is competitive with any activity of LeadPie anywhere in the world. For purposes of this paragraph, competitive activity encompasses forming or making plans to form a business entity that operates a network of sites for the purposes of affiliate marketing, consulting with affiliate marketing networks, or performing software development for affiliate marketing networks.
- Affiliate agrees that during the term of this Agreement, and for a period of thirty-six (36) months thereafter, Affiliate will not, directly or indirectly, solicit for employment or employ any employee or independent contractor of LeadPie for any reason, whether the employee is employed, or in the case of an independent contractor providing goods or services to LeadPie, on the date of the execution of this Agreement or at any time during the term of this Agreement. Affiliate also agrees that during the term of this Agreement and for a period of (36) months thereafter, Affiliate will not, directly or indirectly, solicit business from or perform services for any actual or perspective customer clients of LeadPie during the term of Affiliate’s contractual relationship with LeadPie.
- Should Affiliate violate the non-competition or non-solicitation clauses in this Agreement, LeadPie will be entitled to an injunction restraining Affiliate from engaging in the wrongful conduct. The right to secure an injunction is not exclusive, and LeadPie may pursue any other remedies that it has against the Affiliate for a breach or threatened breach of these condition, including recovery of damages.
13. Term and Termination
- a. LeadPie, in its sole and absolute discretion, may immediately and without prior notice terminate or suspend this Agreement for any reason or no reason at all;
- b. Affiliate may terminate this Agreement by providing seven (7) days prior written notice to LeadPie;
- c. The effective date of this Agreement is the date of LeadPie’s written acceptance of the Agreement;
- d. If LeadPie suspends or terminates this Agreement, Affiliate shall:
- Cease and desist, immediately, the use of Campaign Materials from all Affiliate Websites and use in connection with any Affiliate Databases, including the transmission of any emails out of or relating to this Agreement;
- Agree that any and all licenses granted to Affiliate consistent with this Agreement are immediately terminated and/or revoked;
- Return or destroy Confidential Information, Campaign Information, or other information relating to LeadPie’s Intellectual Property Rights. LeadPie has the sole discretion to require Affiliate to confirm the provisions of this Term and Termination section in writing.
14. Confidential and Proprietary Information
- Affiliate acknowledges that, during the term of this Agreement, LeadPie may disclose to it confidential and proprietary information concerning each LeadPie’s business and operations, including, but not limited to, business plans or methods, proprietary information, financial information, ideas, intellectual property, customer information or lists, marketing interests or plans, data, operating processes or procedures, assessment tools or procedures, or analysis tools or procedures (collectively “Confidential Information”). Affiliate agrees that it will not use or disclose the other LeadPie’s Confidential Information during the term of this Agreement or at any time thereafter without the express written consent of LeadPie, except as is necessary to effectuate the terms of this Agreement.
- This paragraph 14 will not apply to: (i) any information known to the Affiliate or any of its employees, officers, independent contractors, or shareholders prior to the execution of this Agreement; (ii) any information which is or becomes generally available to the industry or the public through no breach of this Agreement; or (iii) any information disclosed to Affiliate or any of its employees, officers, independent contractors, or shareholders by a source (other than LeadPie) which is legally entitled to disclose such information.
- Should Affiliate reveal, threaten to reveal, use, exploit sell, copy, distribute, perform publicly, display publicly, reproduce, or prepare derivative works of the Confidential Information (“Disclosing Party”) the LeadPie will be entitled to an injunction restraining the Disclosing Party from disclosing the same or from rendering any services to any entity to whom said Confidential Information has been or is threatened to be disclosed. The right to secure an injunction is not exclusive, and the non-Disclosing Party may pursue any other remedies that it has against the Disclosing Party for a breach or threatened breach of this condition, including recovery of damages.
15. Independent Contractor Relationship
The Parties agree that the relationship between the Parties will be an independent contractor relationship. Nothing contained within this Agreement will be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship. LeadPie will have not authority to act as an agent for, or on behalf of, Affiliate, or to represent Affiliate or bind Affiliate in any manner.
16. Disclaimer of Warranties
LEADPIE’S NETWORK, CAMPAIGN MATERIALS, TRACKING CODES, AND ALL OTHER MATERIAL ARISING OUT OF OR RELATED TO THIS AGREEMENT, THEIR USE, AND THE RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS BASIS” AND WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LEADPIE MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. NEITHER PARTY IS RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACTS OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL.
LEADPIE WILL NOT BE HELD LIABLE FOR ANY PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES OR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL LOSSES, COSTS, OR EXPENSES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE, OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, BUSINESS INTERRUPTION, LOSS OF OPERATION TIME, AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSS, COST OR EXPENSE. LEADPIE’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS AFFILIATE HAS PAID TO LEADPIE UNDER THE TERMS OF THIS AGREEMENT.
- Affiliate agrees to indemnify, defend, and hold harmless LeadPie, its officers, directors, employees, members, affiliates, independent contractors, and agents, for any and all damages, losses, claims, actions, costs, judgments, liabilities, and expenses, including attorneys’ fees and costs, arising out of or related to any: (i) Affiliate’s participation with LeadPie in connection with this Agreement; (ii) any claim by any third party; (ii) any breach by Affiliate of any representation or warranty set forth in this Agreement; or (iii) Affiliate’s violation of any applicable law, regulation, ordinance, statute, or treaty or breach of the same by any Sub-Affiliates, its officers, directors, employees, members, affiliates, independent contractors, and agents.
- If any action is or will be brought against LeadPie with respect to any allegation for which indemnity may be sought, Affiliate will provide reasonable cooperation to LeadPie, at Affiliate’s expense, to defend against or settle any such claim. Affiliate’s obligation to defend LeadPie under the terms of this Agreement will not provide Affiliate with the ability to control LeadPie’s defense, and LeadPie reserves the right to control its defense and select its counsel.
- This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements, representations, and understandings of the parties, whether written or oral.
- This Agreement may be executed in counterparts, each of which will be deemed to be an original, but all of which, taken together, will constitute one and the same agreement.
- This Agreement may be amended only by written agreement of the Parties.
- All notices permitted or required under this Agreement will be in writing and will be delivered in person or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing. Such notice will be deemed to have been given upon receipt.
- This Agreement will not be assigned by either Party without the consent of the other Party.
- This Agreement will be governed by and interpreted in accordance with the laws of the State of Washington. The Parties’ sole and exclusive forum and remedy at law for any disputes arising out of or related to this Agreement, including the interpretation thereof, will be binding arbitration. Arbitration under this Agreement will be held in Vancouver, Washington and will be conducted by a single arbitrator who will be randomly selected from the American Arbitration Association National Roster of Arbitrators. The arbitrator will decide any and all claims in accordance with the laws and legal principals of the State of Washington and the American Arbitration Association’s most recently effective commercial arbitration rules and will have the authority to award costs and attorneys’ fees. The losing party will be required to pay the prevailing party’s costs and attorneys’ fees. The Parties agree that the determination or award of any such arbitrator or arbitration proceeding may be entered as a judgment in any court sitting within the State of Washington that has jurisdiction over the subject matter of the dispute. The Parties understand and agree that they will be required to be present within the State of Washington in order to perform their obligations under the terms of this Agreement. The Parties hereby submit to the exclusive personal and subject matter jurisdiction of any such arbitrator or arbitration proceeding.
- A failure or delay in exercising any right, power, or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power, or privilege will not be presumed to preclude any subsequent or further exercise of that right, power, or privilege or the exercise of any other right, power, or privilege.